SUPPORTING STATEMENT FOR THE
INFORMATION COLLECTION REQUIREMENTS OF THE
4, 4'-METHYLENEDIANILINE IN CONSTRUCTION STANDARD
(29 CFR 1926.60)
OFFICE OF MANAGEMENT AND BUDGET (OMB)
CONTROL NUMBER 1218-0183 (April 2022)

This ICR seeks to extend authorization for this collection without change.

A. JUSTIFICATION

 Explain the circumstances that make the collection of information necessary.  Identify any legal or administrative requirements that necessitate the collection.  Attach a copy of the appropriate section of each statute and regulation mandating or authorizing the collection of information.

The Occupational Safety and Health Administration(OSHA) cites sections of the Occupational Safety and Health Act (OSH Act) to justify collecting information. Sections of the Occupational Safety and Health Act may be found at 29 U.S.C. Chapter 15  -  Occupational Safety and Health  https://www.law.cornell.edu/uscode/text/29/chapter-15

The main purpose of the Occupational Safety and Health Act ("OSH Act or "Act'') is to "assure" so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources' (29 U.S.C. 651) to achieve this objective OSHA Act  the development and promulgation of occupational safety and health standards" (29 U.S.C. 651).  The Act states further that "[t]he Secretary ... shall prescribe such rules and regulations as [he/she] may deem necessary to carry out [his/her] responsibilities under this Act, including rules and regulations dealing with the inspection of an employer's establishment" (29 U.S.C 651).

To protect worker health, the OSH Act authorizes the Occupational Safety and Health Administration ("OSHA" or "agency") to develop standards that provide for "monitoring or measuring worker exposure" to occupational hazards and "prescribe the type and frequency of medical examinations and other tests which shall be made available [by the employer] to workers exposed to such hazards . . . to most effectively determine whether the health of such workers is adversely affected by such exposure" (29 U.S.C. 655).  Moreover, the Act directs OSHA to "issue regulations requiring employers to maintain accurate records of worker exposures to potentially toxic materials or other harmful physical agents which are required to be monitored and measured . . . " (29 U.S.C. 657).  In addition, the OSH Act mandates that "[e]ach employer shall make, keep and preserve, and make available to the Secretary [of Labor] . . . such records regarding [the employer's] activities relating to this Act as the Secretary . . . may prescribe by regulation as necessary or appropriate for the enforcement of this Act . . . " (29 U.S.C. 657).

The Act authorizes the agency to issue standards that "prescribe the use of labels or other appropriate forms of warning as are necessary to insure that workers are apprised of all hazards to which they are exposed, relevant symptoms and appropriate emergency treatment, and proper conditions and precautions of safe use or exposure" (29 U.S.C. 655).  Additionally, the OSH Act mandates that "[e]ach employer shall make, keep and preserve, and make available to the Secretary . . . such records . . . as the Secretary . . . may prescribe by regulation as necessary or appropriate for the enforcement of this Act . . . " (29 U.S.C. 657).

2.  	Indicate how, by whom, and for what purpose the information is used.  Except for a new collection, indicate the actual use the agency has made of the information received from the current collection.

The major purpose of these requirements is to limit the incidence of communicable disease outbreaks in temporary labor camps.  Compliance with this aspect of the Standard is necessary for the maintenance of a safe and healthful work environment.

A.  Communication among employers (§ 1926.60(d))

On multi-employer worksites, an employer performing work involving the application of MDA or materials containing MDA for which establishment of one or more regulated areas is required shall inform other employers on the site of the nature of the employer's work with MDA and of the existence of, and requirements pertaining to, regulated areas.

Purpose:

This requirement ensures that other employers at a multi-employer worksite receive the necessary information to prevent MDA exposure to their workers.

B.  Emergency situations (§ 1926.60(e))

Written plan (§ 1926.60(e)(1))

§ 1926.60(e)(1)(i)

A written plan for emergency situations shall be developed for each construction operation where there is a possibility of an emergency.  The plan shall include procedures where the employer identifies emergency escape routes for his employees at each construction site before the construction operation begins.  Appropriate portions of the plan shall be implemented in an emergency.

§ 1926.60(e)(1)(ii)

The plan shall specifically provide that employees engaged in correcting emergency conditions shall be equipped with the appropriate personal protective equipment and clothing as required in paragraphs (i) and (j) of this section until the emergency is abated.

§ 1926.60(e)(1)(iii)

The plan shall specifically include provisions for alerting and evacuating affected employees as well as the applicable elements prescribed in 29 CFR 1910.38 and 29 CFR 1910.39, "Emergency action plans" and "Fire prevention plans," respectively.

Purpose:

Emergency and fire prevention plans provide workers with information to minimize MDA exposures during an emergency.

C.  Exposure monitoring (§ 1926.60(f))

General (§ 1926.60(f)(1))

§ 1926.60(f)(1)(i)

Determinations of employee exposure shall be made from breathing zone air samples that are representative of each employee's exposure to airborne MDA over an eight (8) hour period. Determination of employee exposure to the STEL shall be made from breathing zone air samples collected over a 15 minute sampling period.

§ 1926.60(f)(1)(ii)

Representative employee exposure shall be determined on the basis of  one or more samples representing full shift exposure for each shift for each job classification in each work area where exposure to MDA may occur.

§ 1926.60(f)(1)(iii)

Where the employer can document that exposure levels are equivalent for similar operations in different work shifts, the employer shall only be required to determine representative employee exposure for that operation during one shift.

Purpose:
To assess worker MDA exposures, the employer has the duty to  characterize the workplace by performing monitoring and identifying tasks that exceed the STEL and PEL.

Initial monitoring (§ 1926.60(f)(2))

Each employer who has a workplace or work operation covered by this Standard shall perform initial monitoring to determine accurately the airborne concentrations of MDA to which employees may be exposed unless:

      § 1926.60(f)(2)(i) - the employer can demonstrate, on the basis of objective data, that the MDA-containing product or material being handled cannot cause exposures above the standard's action level, even under worst-case release conditions; or

      § 1926.60(f)(2)(ii) - the employer has historical monitoring or other data demonstrating that exposures on a particular job will be below the action level.

Purpose:

Such monitoring allows employers to identify areas and operations that may require an additional reduction in airborne MDA to meet the PEL.  Initial exposure-monitoring results also assist employers in determining the need for engineering controls, implementing or modifying work practices, and selecting appropriate personal protection to prevent workers from overexposure to MDA.

Periodic monitoring and monitoring frequency (§ 1926.60(f)(3))

§ 1926.60(f)(3)(i)

If the monitoring required by paragraph (f)(2) of this section reveals employee exposure at or above the action level, but at or below the PELs, the employer shall repeat such monitoring for each such employee at least every six (6) months.

§ 1926.60(f)(3)(ii)

If the monitoring required by paragraph (f)(2) of this section reveals employee exposure above the PELs. the employer shall repeat such monitoring for each employee at least every three (3) months.

§ 1926.60(f)(3)(iii)

Employers conducting MDA operations within a regulated area can forgo periodic monitoring if the employees are all wearing supplied-air respirators while working in the regulated area.

§ 1926.60(f)(3)(iv)

The employer may alter the monitoring schedule from every three months to every six months for any employee for whom two consecutive measurements taken at least 7 days apart, indicate that the employee exposure has decreased to below the PELs but above the action level.

Purpose:
Periodic exposure monitoring allows employers to determine if modifications in processes, materials, or environmental conditions could result in MDA levels exceeding the PEL. Periodic exposure monitoring also enables employers to evaluate the effectiveness of control methods.  In addition, these measurements remind both the employer and workers of the continuing need to protect against the hazards that could result from worker overexposure.

Additional monitoring (§ 1926.60(f)(5))

The employer shall institute the exposure monitoring required under paragraphs (f)(2) and (f)(3) of this section when there has been a change in production process, chemicals present, control equipment, personnel, or work practices which may result in new or additional exposures to MDA, or when the employer has any reason to suspect a change which may result in further or additional exposures.

Purpose:

Changes in the  production process, chemicals present, control equipment, personnel, or work practices may lead to increases in  employee exposure levels.  Additional monitoring ensures that the workplaces is safe and also alerts employers of the need to increase worker protections such as providing appropriate personal protective equipment or the need to implement engineering controls.

Employee notification of monitoring results (§ 1926.60(f)(7))
§ 1926.60(f)(7)(i)

The employer must as soon as possible but no later than 5 working days after the receipt of the results of any monitoring performed under this section, notify each effected employee of these results either individually in writing or by posting the results in an appropriate location that is accessible to employees.
§ 1926.60(f)(7)(ii)
The written notification required by paragraph (f)(7)(i) of this section shall contain the corrective action being taken by the employer or any other protective measures which have been implemented to reduce the employee exposure to or below the PELs, wherever the PELs are exceeded.

Purpose:

Consistent with Section 8(c)(3) of the OSH Act, every worker has the right to know what their exposure level is and whether it is above or below the action level.  Moreover, since the permissible exposure level also considers feasibility and, therefore, is not necessarily a "safe" level, it is necessary for the worker to know the level of MDA to which they were exposed.

Additionally, when exposures are above the PEL, the employer must also state in the notification what corrective action the employer is going to take to reduce the exposure level.  This is necessary to assure workers that the employer will make every effort to provides a safe and healthy work environment as required by Section 8(c)(3) of the OSH Act.

Visual monitoring (§ 1926.60(f)(8))

The employer shall make routine inspections of employee hands, face and forearms potentially exposed to MDA. Other potential dermal exposures reported by the employee must be referred to the appropriate medical personnel for observation. If the employer determines that the employee has been exposed to MDA the employer shall:

      § 1926.60(f)(8)(i) - Determine the source of exposure;

      § 1926.60(f)(8)(ii) - Implement protective measures to correct the hazard; and

      § 1926.60(f)(8)(iii) - Maintain records of the corrective actions in accordance with paragraph (o) of this section.

Purpose:

Visual monitoring ensures timely recognition and treatment of workers harmed by exposure to MDA, thus reducing the possibility of permanent injury.

D.  Methods of compliance (§ 1926.60(h))

Compliance program (§ 1926.60(h)(5))

§ 1926.60(h)(5)(i)

The employer shall establish and implement a written program to reduce worker exposure to or below the PELs by means of engineering and work practice controls, as required by paragraph (h)(1) of this section, and by use of  respiratory protection where permitted under this section.

§ 1926.60(h)(5)(ii)

Upon request, this written program shall be furnished for examination and copying to the Assistant Secretary, the Director, affected workers, and designated worker representatives. The employer shall review and, as necessary, update such plans at least once every 12 months to make certain they reflect the current status of the program.

Purpose:

This provision requires the employer to evaluate worker exposure and establish an organized and complete program for reducing worker exposures at or below the PEL.  Revising and updating the written program reminds employers to implement and maintain the exposure-control methods required in the Standard.

OSHA has determined that the requirement for employers to make information available upon request to the Assistant Secretary is not a collection of information; OSHA typically requests access to records during an inspection, and information collected by the Agency during the investigation is not subject to the PRA under 5 CFR 1320.4(a)(2). While NIOSH may use records collected from employers for research purposes, the Agency does not anticipate NIOSH to request employers to make available records during the approval period.  Therefore, the burden for the employer to make this information available to NIOSH is zero. OSHA is not taking burden for this activity under Item 12 of this Supporting Statement.

E.  Respiratory Program (§ 1926.60(i))

General (§ 1926.60(i)(1))

For employees who use respirators required by this section, the employer must provide each employee with an appropriate respirator that complies with the requirements of this paragraph.
Respirators must be used during:

      § 1926.60(i)(1)(i) - Periods necessary to install or implement feasible engineering and work practice controls.

      § 1926.60(i)(1)(ii) - Work operations, such as maintenance and repair activities and spray-application processes, for which engineering, and work practice controls are not feasible.

      § 1926.60(i)(1)(iii) - Work operations for which feasible engineering and work practice controls are not yet sufficient to reduce employee exposure to or below the PELs.

      § 1926.60(i)(1)(iv) - Emergencies.

Respiratory program (§ 1926.60(i)(2))

The employer must implement a respiratory protection program by Sec.  1910.134 (b) through (d) (except (d)(1)(iii)), and (f) through (m), which covers each employee required by this section to use a respirator.

Purpose:

OSHA's Respiratory Protection Standard assists employers in protecting the health of workers exposed to airborne contaminants and biological agents.  The respiratory protection collections of information are contained in the Respiratory Protection ICR, OMB Control Number 1218-0099.  The Respiratory Protection ICR provides the justification, purpose, burden hours, and cost estimates for these provisions.

F.  Protective work clothing and equipment (§ 1926.60(j))

Removal and storage (§ 1926.60(j)(2))

§ 1926.60(j)(2)(v)

Containers of MDA-contaminated protective work clothing or equipment which are to be taken out of decontamination areas or the workplace for cleaning, maintenance, or disposal, shall bear labels warning of the hazards of MDA.

Purpose:

This requirement prevents MDA exposure of downstream workers who handle the protective clothing and equipment.  Example activities would include cleaning, maintaining, repairing, or disposing of clothing and equipment possibly contaminated with MDA.

Cleaning and replacement (§ 1926.60(j)(3)(iv) and (j)(3)(v))

§ 1926.60(j)(3)(iv)

Any employer who gives MDA-contaminated clothing to another person for laundering shall inform such person of the requirement to prevent the release of MDA.

§ 1926.60(j)(3)(v)

The employer shall inform any person who launders or cleans protective clothing or equipment contaminated with MDA of the potentially harmful effects of exposure.

Purpose:

Personnel, who may come into contact with MDA contaminated clothing, must be informed and protected from the possible hazards associated with MDA exposure.

G.  Communication of hazards to employees (§ 1926.60(l))

Signs and labels (§ 1926.60(l)(2))

§ 1926.60(l)(2)(i)(A)

The employer shall post and maintain legible signs demarcating regulated areas and entrances or access ways to regulated areas that bear the following legend:
                                    DANGER

MDA

MAY CAUSE CANCER

CAUSES DAMAGE TO THE LIVER

RESPIRATORY PROTECTION AND PROTECTIVE CLOTHING
MAY BE REQUIRED IN THIS AREA

                           AUTHORIZED PERSONNEL ONLY

§ 1926.60(l)(2)(i)(B)

Prior to June 1, 2016, employers may use the following legend in lieu of that specified in paragraph (l)(2)(i)(A) of this section:
                                      DANGER

                                      MDA

MAY CAUSE CANCER

 LIVER TOXIN

AUTHORIZED PERSONNEL ONLY

RESPIRATORS AND PROTECTIVE CLOTHING
MAY BE REQUIRED TO BE WORN IN THIS AREA

§ 1926.60(l)(2)(ii)(A)

The employer shall ensure that labels or other appropriate forms of warning are provided for containers of MDA within the workplace. The labels shall comply with the requirements of § 1910.1200(f) and shall include at least the following information for pure MDA and mixtures containing MDA:

                                    DANGER

CONTAINS MDA

MAY CAUSE CANCER

CAUSES DAMAGE TO THE LIVER

§ 1926.60(l)(2)(ii)(B)

Prior to June 1, 2015, employers may include the following information workplace labels in lieu of the labeling requirements in paragraph (l)(2)(ii)(A) of this section:

For pure MDA:

                                    DANGER

CONTAINS MDA

MAY CAUSE CANCER

LIVER TOXIN

For mixtures containing MDA:

                                    DANGER

                                 CONTAINS MDA

                   CONTAINS MATERIALS WHICH MAY CAUSE CANCER

LIVER TOXIN

Purpose:

Signs warn workers that they can enter a regulated area only if they have authority to do so and a specific need exists to enter the area.  Signs warn workers that they are in or near a hazardous area and act as a supplement to reinforce the hazard-recognition training workers receive under the Standard.  Additionally, warning labels inform downstream employers and workers of the hazards associated with MDA and that they may need to implement special practices to prevent exposure to the substance.  Furthermore, hazard labels alert other employers who, in the absence of such labels, may not know that MDA is present in their workplace and serve as a reminder that they must comply with the Standard.

The provisions containing the paperwork requirements associated with signs and labels specify the specific language for these materials.  Therefore, OSHA is taking no burden for these provisions since the Agency is providing the information needed by employers to meet these requirements.  (See "Controlling Paperwork Burden on the Public," (5 CFR 1320.3(c)(2)).

Information and training (§ 1926.60(l)(3))

§ 1926.60(l)(3)(i)

The employer shall provide employees with information and training on MDA, in accordance with 29 CFR 1910.1200(h), at the time of initial assignment and at least annually thereafter.

§ 1926.60(l)(3)(ii)

In addition to the information required under 29 CFR 1910.1200, the employer shall:

      § 1926.60(l)(3)(ii)(A)  -  Provides an explanation of  the contents of this section, including appendices A and B, and indicate to employees where a copy of the standard is available;

      § 1926.60(l)(3)(ii)(B) - Describe the medical surveillance program required under paragraph (n) of this section, and explain the information contained in appendix C of the section; and

      § 1926.60(l)(3)(ii)(C) - Describe the medical removal provision required under paragraph (n) of this section.

Purpose:
Training is essential to inform workers of the health hazards of MDA exposure and provide them with the understanding required to minimize health hazards.  In addition, training provides  information to workers that enable them to recognize how and where MDA exposure occurs, and what steps to take, including work practices, to avoid or limit such exposure.  Another benefit of training is that it disclosure the information presented to workers on warning signs and labels.  Workers must understand the information and be aware of their actions to avoid or minimize MDA exposure.  The Agency has determined that the requirement for employers to make records available upon request to the Assistant Secretary is no longer considered a collection of information.  OSHA typically requests access to records during an inspection, and information collected by the Agency during the investigation is not subject to the PRA under 5 CFR 1320.4(a)(2).

Access to training materials (§ 1926.60(l)(4))

§ 1926.60(l)(4)(i)

The employer shall make readily available to all affected employees, without cost all written materials relating to the employee training program, including a copy of this regulation.

§ 1926.60(l)(4)(ii)

The employer shall provide to the Assistant Secretary and the Director, upon request, all information and training materials relating to the employee information and training program.

Purpose:

Allowing workers to have access to  the training materials ensures that the employer provided them with the required information and training, thereby assuring that the workers can minimize or eliminate workplace exposure to MD. OSHA no longer considers this requirement a collection of information under the Paperwork Reduction Act, as information collected by the Agency during the investigation is not subject to the PRA under 5 CFR 1320.4(a)(2). While NIOSH may use records collected from employers for research purposes, the Agency does not anticipate NIOSH to request employers to make available records during the approval period.  Therefore, the burden for the employer to make this information available to NIOSH is zero.

H.  Medical surveillance (§ 1926.60(n))

General (§ 1926.60(n)(1))

§ 1926.60(n)(1)(i)

The employer shall make available a medical surveillance program for employees exposed to MDA under the following circumstances:

      § 1926.60(n)(1)(i)(A) - Employees exposed at or above the action level for 30 or more days per year;

      § 1926.60(n)(1)(i)(B) - Employees who are subject to dermal exposure to MDA for 15 or more days per year;

      § 1926.60(n)(1)(i)(C) - Employees who have been exposed in an emergency;

      § 1926.60(n)(1)(i)(D) - Employees whom the employer, based on results from compliance with paragraph (f)(8) of this section, has reason to believe are being dermally exposed; and

      § 1926.60(n)(1)(i)(E) - Employees who show signs or symptoms of MDA exposure.

Initial examinations (§ 1926.60(n)(2))

§ 1926.60(n)(2)(i)

Within 150 days of the effective date of this standard, or before the time of initial assignment, the employer shall provide each employee covered by paragraph (n)(1)(i) of this section with a medical examination including the following elements:

      § 1926.60(n)(2)(i)(A) - A detailed history which includes:

            § 1926.60(n)(2)(i)(A)(1) - Past work exposure to MDA or any other toxic substances;

            § 1926.60(n)(2)(i)(A)(2) - A history of drugs, alcohol, tobacco, and medication routinely taken (duration and quantity); and

            § 1926.60(n)(2)(i)(A)(3) - A history of dermatitis, chemical skin sensitization, or previous hepatic disease.

      § 1926.60(n)(2)(i)(B) - A physical examination which includes all routine physical examination parameters, skin examination, and examination for signs of liver disease.

      § 1926.60(n)(2)(i)(C) - Laboratory tests including:

      § 1926.60(n)(2)(i)(C)(1) - Liver function tests and (2) Urinalysis
            § 1926.60(n)(2)(i)(D) - Additional tests as necessary in the opinion of the physician.

§ 1926.60(n)(2)(ii)

No initial medical examination is required if adequate records show that the employee has been examined in accordance with the requirements of this section within the previous six months prior to the effective date of this standard or before the date of initial assignment.

Periodic examinations (§ 1926.60(n)(3))

§ 1926.60(n)(3)(i)

The employer shall provide each employee covered by this section with a medical examination at least annually following the initial examination. These periodic examinations shall include at least the following elements:

      § 1926.60(n)(3)(i)(A) - A brief history regarding any new exposure to potential liver toxins, changes in drug, tobacco, and alcohol intake, and the appearance of physical signs relating to the liver, and the skin;

      § 1926.60(n)(3)(i)(B) - The appropriate tests and examinations, including liver function tests and skin examinations; and

      § 1926.60(n)(3)(i)(C) - Appropriate additional tests or examinations as deemed necessary by the physician.

Emergency examinations (§ 1926.60(n)(4))

If the employer determines that the employee has been exposed to a potentially hazardous amount of MDA in an emergency situation under (e) of this section, the employer shall provide medical examinations in accordance with  (n)(3)(i) and (ii) of this section.  If the results of liver function testing indicate an abnormality, the employee shall be removed in accordance with paragraph (n)(9) of this section.  Repeat liver function tests shall be conducted on the advice of the physician.  If the results of the tests are normal, tests must be repeated two to three weeks from the initial testing.  If the results of the second set of tests are normal and on the advice of the physician, no additional testing is required.

Additional examinations (§ 1926.60(n)(5))

Where the employee develops signs and symptoms associated with exposure to MDA, the employer shall provide the employee with an additional medical examination, including liver function tests.  Repeat liver function tests shall be conducted on the advice of the physician.  If
the results of the tests are normal, tests must be repeated two to three weeks from the initial testing.  If the results of the second set of tests are normal and on the advice of the physician, no additional testing is required.

Purpose:

The purpose of medical surveillance is the prevention or detection of abnormalities  that may occur in some MDA-exposed workers early enough to prevent cancer, liver disease, and dermal hazards from developing, or to provide earlier treatment for these conditions.  OSHA considers regular medical surveillance for MDA workers exposed at or above the action level necessary.

Multiple physician review mechanism (§ 1926.60(n)(6))

§ 1926.60(n)(6)(ii)

The employer shall promptly notify a worker of the right to seek a second medical opinion after each occasion that an initial physician conducts a medical examination or consultation pursuant to this section.  The employer may condition its participation in, and payment for, the multiple physician review mechanism upon the worker doing the following within fifteen (15) days after receipt of the foregoing notification, or receipt of the initial physician's written opinion, whichever is later:

      § 1926.60(n)(6)(ii)(A) - The employee informing the employer that he or she intends to seek a second medical opinion, and

      § 1926.60(n)(6)(ii)(B) - The employee is initiating steps to make an appointment with a second physician.

Purpose:

It is necessary to require a multiple-physician review mechanism.  This requirement ensures workers will not refuse medical examinations because of fear their jobs could be terminated.

Information provided to the examining physician (§ 1926.60(n)(7))

§ 1926.60(n)(7)(i)

The employer shall provide the following information to the examining physician:

      § 1926.60(n)(7)(i)(A) - A copy of this regulation and its appendices;

      § 1926.60(n)(7)(i)(B) - A description of the affected employee's duties as they relate to the employee's potential exposure to MDA;

      § 1926.60(n)(7)(i)(C) - The employee's current actual or representative MDA exposure level;

      § 1926.60(n)(7)(i)(D) - A description of any personal protective equipment used or to be used; and

      § 1926.60(n)(7)(i)(E) - Information from previous employment related medical examinations of the affected employee.

§ 1926.60(n)(7)(ii)

The employer shall provide the foregoing information to a second physician under this section upon request either by the second physician or by the employee.

Purpose:

Making this information available to physicians assists them in evaluating the worker's health and fitness for specific job assignments involving MDA exposure.  As noted earlier, if symptoms of organic damage appear, a physician often needs this information to make an accurate diagnosis of the new condition, its apparent cause, and the course of treatment required.

Physician's written opinion (§ 1926.60(n)(8))

§ 1926.60(n)(8)(i)

For each examination under this section, the employer shall obtain and provide the employee with a copy of the examining physician's written opinion within 15 days of its receipt.  The written opinion shall include the following:

      § 1926.60(n)(8)(i)(A) - The occupationally pertinent results of the medical examination and tests;

      § 1926.60(n)(8)(i)(B) - The physician's opinion concerning whether the employee has any detected medical conditions which would place the employee at increased risk of material impairment of health from exposure to MDA;

      § 1926.60(n)(8)(i)(C) - The physician's recommended limitations upon the employee's exposure to MDA or upon the employee's use of protective clothing or equipment and respirators; and

§ 1926.60(n)(8)(i)(D) - A statement that the employee has been informed by the physician of the results of the medical examination and any medical conditions resulting from MDA exposure which require further explanation or treatment.

Purpose:

The purpose of providing the physician's written opinion to the employer with medical information is to aid in the initial placement of worker's ability to use protective clothing and equipment.  The physician's written opinion also informs the employer whether the worker has a condition indicating overexposure to MDA.  The requirement that the physician's opinion is in writing permits retention of the information for later reference.  Providing workers with a copy of the physician's written opinion informs them of the medical-examination results to assist in determining the need for and evaluating the effectiveness of treatment or other interventions.

Medical removal (§ 1926.60(n)(9))

§ 1926.60(n)(9)(v)(C)

Follow-up medical surveillance during the period of employee removal or limitations.

During the period of time that an employee is removed from normal exposure to MDA or otherwise limited, the employer may condition the provision of medical removal protection benefits upon the employee's participation in follow-up medical surveillance made available pursuant to this section.

Purpose:

Medical removal prevents medical impairments induced or exacerbated by MDA from becoming worse.  In addition, medical removal allows workers who have these impairments an opportunity to recuperate and return to their former jobs.

I.  Recordkeeping (§ 1926.60(o))

Objective data for exempted operations (§ 1926.60(o)(1))

§ 1926.60(o)(1)(i)

Where the employer has relied on objective data that demonstrate that products made from or containing MDA are not capable of releasing MDA or do not present a dermal exposure problem under the expected conditions of processing, use, or handling to exempt such operations from the initial monitoring requirements under paragraph (f)(2) of this section, the employer shall establish and maintain an accurate record of objective data reasonably relied upon in support of the exemption.

§ 1926.60(o)(1)(ii) - The record shall include at least the following information:

      § 1926.60(o)(1)(ii)(A) - The product qualifying for exemption;

      § 1926.60(o)(1)(ii)(B) - The source of the objective data;

      § 1926.60(o)(1)(ii)(C) - The testing protocol, results of testing, and/or analysis of the material for the release of MDA;

      § 1926.60(o)(1)(ii)(D) - A description of the operation exempted and how the data support the exemption; and

      § 1926.60(o)(1)(ii)(E) - Other data relevant to the operations, materials, processing, or employee exposures covered by the exemption.

§ 1926.60(o)(1)(iii)

The employer shall maintain this record for the duration of the employer's reliance upon such objective data.

Purpose:

Documenting and retaining objective data demonstrates the appropriateness of an employer's reliance on objective data in lieu of initial monitoring.  Maintaining a record of objective data determinations will permit OSHA to ascertain whether compliance with the Standard has been achieved.

Historical monitoring data (§ 1926.60(o)(2))

§ 1926.60(o)(2)(i)

Where the employer has relied on historical monitoring data that demonstrate that exposures on a particular job will be below the action level to exempt such operations from the initial monitoring requirements under paragraph (f)(2) of this section, the employer shall establish and maintain an accurate record of historical monitoring data reasonably relied upon in support of the exception.

§ 1926.60(o)(2)(ii)

The record shall include information that reflect the following conditions:

      § 1926.60(o)(2)(ii)(A) - The data upon which judgments are based are scientifically sound and were collected using methods that are sufficiently accurate and precise;

      § 1926.60(o)(2)(ii)(B) - The processes and work practices that were in use when the historical monitoring data were obtained are essentially the same as those to be used during the job for which initial monitoring will not be performed;

      § 1926.60(o)(2)(ii)(C) - The characteristics of the MDA-containing material being handled when the historical monitoring data were obtained are the same as those on the job for which initial monitoring will not be performed;

      § 1926.60(o)(2)(ii)(D) - Environmental conditions are prevailing when the historical monitoring data were obtained the same as those on the job for which initial monitoring will not be performed; and

      § 1926.60(o)(2)(ii)(E) - Other data relevant to the operations, materials, processing, or employee exposures covered by the exception.

§ 1926.60(o)(2)(iii)

The employer shall maintain this record for the duration of the employer's reliance upon such historical monitoring data.

Purpose:

This information collection requirement discourages abuse of the exemption.  Under the recordkeeping provisions of the Standard, notably paragraph (o)(7)(ii), workers and their representatives have access to the information and data used by an employer to determine whether the exemption applies to their jobs.  Such access assures workers that the determinations are reasonable and the exemption is warranted.  Additionally, maintaining these records permits OSHA to ascertain whether the employer is complying with the requirements of this provision.

Exposure measurements (§ 1926.60(o)(4))

§ 1926.60(o)(4)(i)

The employer shall keep an accurate record of all measurements taken to monitor employee exposure to MDA.

§ 1926.60(o)(4)(ii)

This record shall include at least the following information:

      § 1926.60(o)(4)(ii)(A) - The date of measurement;

      § 1926.60(o)(4)(ii)(B) - The operation involving exposure to MDA;

      § 1926.60(o)(4)(ii)(C) - Sampling and analytical methods used and evidence of their accuracy;

      § 1926.60(o)(4)(ii)(D) - Number, duration, and results of samples taken;

      § 1926.60(o)(4)(ii)(E) - Type of protective devices worn, if any; and

      § 1926.60(o)(4)(ii)(F) - Name and exposure of the employees whose exposures are represented.

§ 1926.60(o)(4)(iii)

The employer shall maintain this record for at least thirty (30) years, in accordance with 29 CFR 1910.33.

Medical surveillance (§ 1926.60(o)(5))

§ 1926.60(o)(5)(i)

The employer shall establish and maintain an accurate record for each employee subject to medical surveillance by paragraph (n) of this section, in accordance with 29 CFR 1926.33.

§ 1926.60(o)(5)(ii)

The record shall include at least the following information:

      § 1926.60(o)(5)(ii)(A) - The name of the employee;

      § 1926.60(o)(5)(ii)(B) - A copy of the employee's medical examination results, including the medical history, questionnaire responses, results of any tests, and physician's recommendations.

      § 1926.60(o)(5)(ii)(C) - Physician's written opinions;

      § 1926.60(o)(5)(ii)(D) - Any employee medical complaints related to exposure to MDA; and

      § 1926.60(o)(5)(ii)(E) - A copy of the information provided to the physician as required by paragraph (n) of this section.

§ 1926.60(o)(5)(iii)

The employer shall ensure that this record is maintained for the duration of employment plus thirty (30) years, in accordance with 29 CFR 1926.33.

§ 1926.60(o)(5)(iv)

A copy of the employee's medical removal and return to work status.

Purpose:

Documentation and maintenance of the medical-examination results provide a continuous record of worker health.  Physicians use these records to determine the extent to which workers, since their last examination, experience health effects related to MDA exposure.  Further, if symptoms of organic damage appear, the physician often needs information about a worker's previous medical conditions to make an accurate diagnose the new condition, ascertain its apparent cause, and identify a course of treatment.  Medical records also permit workers to determine whether they need treatment or evaluate the effectiveness of their employer's exposure-reduction program.

Training records (§ 1926.60(o)(6))

The employer shall maintain all employee training records for one (1) year beyond the last date of employment.

Purpose:

This requirement allows employers and workers to determine when to update training and permits OSHA to ascertain whether workers are receiving appropriate and timely training.

Availability (§ 1926.60(o)(7))

§ 1926.60(o)(7)(i)

The employer, upon written request, shall make all records required to be maintained by this section available to the Assistant Secretary and the Director for examination and copying.

§ 1926.60(o)(7)(ii)

The employer, upon request, shall make any exposure records required by paragraphs (f) and (n) of this section available for examination and copying to affected employees, former employees, designated representatives, and the Assistant Secretary, in accordance with 29 CFR 1910.33(a)-(e) and (g)-(i).

§ 1926.60(o)(7)(iii)

The employer, upon request, shall make employee medical records required by paragraphs (n) and (o) of this section available for examination and copying to the subject employee, anyone having the specific written consent of the subject employee, and the Assistant Secretary, in accordance with 29 CFR 1910.33.

Purpose:

The OSHA compliance officer uses these records to assess employer compliance with the pertinent requirements of the Standard, while NIOSH may compile these records for research purposes.  OSHA no longer considers this requirement a collection of information. OSHA typically requests access to records during an inspection, and information collected by the Agency during the investigation is not subject to the PRA under 5 CFR 1320.4(a)(2). While NIOSH may use records collected from employers for research purposes, the Agency does not anticipate NIOSH to request employers to make available records during the approval period.  Therefore, the burden for the employer to make this information available to NIOSH is zero.
Workers and worker representatives use exposure-monitoring and medical surveillance records to assess worker medical status throughout employment, to evaluate the effectiveness of the employer's exposure-reduction program, and for other reasons.

Transfer of records (§ 1926.60(o)(8))

§ 1926.60(o)(8)(i)

The employer shall comply with the requirements concerning transfer of records set forth in 29 CFR 1910.1020(h).

The standard requires employers ceasing to do business to transfer records to a successor employer. Employers must comply with the transfer requirements in § 1910.1020(h).

Paragraph (h) of § 1910.1020 requires employers who cease to do business to transfer medical and exposure-monitoring records to the successor employer, who then must receive and maintain the records.

 If no successor employer is available, the employer must at least three months before ceasing business, notify current workers who have records of their right to access these records.

OSHA considers the employer's transfer of records to a successor employer usual and customary communication during the transition from one employer to a successor employer.  In this regard, the employer would communicate the location of all records, including worker exposure-monitoring and medical records, at the facility to the successor employer during the transfer of business operations, as a matter of usual and customary business practice.

In addition, OSHA accounts for the burden hours and costs resulting from the worker notification requirements under the Information Collection Request (ICR) for its Access to Employee Exposure and Medical Records Standard (§ 1910.1020), OMB Control No. 1218-0065.

3.  	Describe whether, and to what extent, the collection of information involves the use of automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses, and the basis for the decision for adopting this means of collection.  Also,- describe any consideration of using information technology to reduce burdens.

Employers may use automated, electronic, mechanical, or other technological collection techniques, or other forms of information technology (e.g., electronic submission of responses), when establishing and maintaining the required records.  The Agency wrote the paperwork requirements of the Standard in performance-oriented language, i.e., in terms of what data to collect, not how to record the data.

4.   	Describe efforts to identify duplication.  Show specifically why any similar information already available cannot be used or modified for the purposes described in Item A.2 above.

The requirements to collect and maintain information are specific to each employer and worker involved, and no other source or agency duplicates these requirements or can make the required information available to OSHA (i.e., the required information is available only from employers).  At this time, there is no indication that any alternate information source is available.

5.   	If the information collection impacts small businesses or other small entities, describe any methods to minimize the burden.

The information collected does not have a significantly impact on a substantial number of small entities.

6.  	Describe the consequence to federal program or policy activities if the collection is not conducted or is conducted less frequently, as well as any technical or legal obstacles to reducing the burden.

The Agency believes that the information collection frequencies required by the Standard are the minimum frequencies necessary to effectively monitor the exposure and health status of workers exposed to MDA, and thereby fulfill its mandate "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources" as specified by the OSH Act at 29 U.S.C. 651.  Accordingly, if employers do not perform the required information collections or delay providing this information, workers will have an increased probability of developing cancer, liver dysfunction, and dermal injuries because of their MDA exposures.

7.    	Explain any special circumstances that would cause an information collection to be conducted in a manner:

*	requiring respondents to report information to the agency more often than quarterly.

*	requiring respondents to prepare a written response to a collection of information in fewer than
      30 days after receipt of it.

*	requiring respondents to submit more than an original and two copies of any document.

*	requiring respondents to retain records other than health, medical, government contract,                                 	grant-in-aid, or tax records for more than three years.

*	in connection with a statistical survey that is not designed to produce valid and reliable results that
              	can be generalized to the universe of study.

*	requiring the use of a statistical data classification that has not been reviewed and approved by
               OMB.

*	that includes a pledge of confidentiality that is not supported by authority established in statute or                	regulation, that is not supported by disclosure and data security policies that are consistent with the                 	pledge, or which unnecessarily impedes sharing of data with other agencies for compatible                                	confidential use.

*	Requiring respondents to submit proprietary trade secret, or other confidential information unless                  	 the agency can demonstrate that it has instituted procedures to protect the information's                                  	 confidentiality to the extent permitted by law.

Under paragraph (f)(7) of the Standard, employers must notify each worker of the exposure-monitoring results as soon as possible but no later than 5 working days after receiving these results.  Employers may notify workers either individually in writing, or by posting the monitoring results in an appropriate location that is accessible to affected exposed workers.  Paragraph (n)(6)(ii) requires employers to promptly notify workers of their right to seek a second medical opinion after each initial medical examination or consultation.  Workers may be required to fulfill certain conditions within 15 days to participate in the second opinion.  Also, if the exposure-monitoring results exceed the PEL, the employer must inform the exposed workers of the corrective action the employer is taking to prevent overexposure to MDA.  In addition, paragraph (n)(8)(i) of the Standard requires employers to provide a copy of the physician's written opinion to the covered worker within 15 days after the employer receives the opinion. In addition, under OSHA's Access to Employee Exposure and Medical Records Standard (§ 1910.1020), employers must maintain exposure monitoring results for at least 30 years.  The retention of employee exposure records is necessary to assess the relationship between employee exposure and subsequent development of medical diseases.

8.  	If applicable, provide a copy and identify the date and page number of publication in the Federal Register of the agency's notice, required by 5 CFR 1320.8(d), soliciting comments on the information collection prior to submission to OMB.  Summarize public comments received in response to that notice and describe actions taken by the agency in response to these comments.  Specifically address comments received on cost and hour burden.

      Describe efforts to consult with persons outside the agency to obtain their views on the availability of data, frequency of collection, the clarity of instructions and recordkeeping, disclosure, or reporting format (if any), and on the data elements to be recorded, disclosed, or reported.

      Consultation with representatives of those from whom information is to be obtained or those who must compile records should occur at least once every 3 years -- even if the collection of information activity is the same as in prior periods.  There may be circumstances that may preclude consultation in a specific situation.  These circumstances should be explained.

As required by the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 506(c)(2)(A)), OSHA published a notice in the Federal Register on xxxxxx) soliciting comments on its proposal to extend the Office of Management and Budget's (OMB) approval of the information collection requirements specified in the Methylenedianiline in Construction (29 CFR 1926.60), (Docket No. OSHA-2011-0031). This notice is part of a preclearance consultation program that provides interested parties the opportunity to comment on OSHA's request for an extension by OMB of previous approval of the information collection requirements found in the above Standard. The Agency will respond to any substantive comments submitted in response to this notice.

9.  	Explain any decision to provide any payment or gift to respondents other than the remuneration of contractors or grantees.

No payments or gifts will be provided to the respondents.
10.  	Describe any assurance of confidentiality provided to respondents and the basis for the assurance in statute, regulation, or agency policy.

As medical records contain personal information, OSHA and NIOSH have taken steps to assure  that the medical data in these records are kept confidential.  Agency practices and procedures governing access to worker medical records are contained in 29 CFR 1913.10.

11.  	Provide additional justification for any questions of a sensitive nature, such as sexual behavior and attitudes, religious beliefs, and other matters that are commonly considered private.  This justification should include why the agency considers the questions necessary, the specific uses to be made of the information, the explanation to be given to persons from whom the information is requested, and any steps to obtain their consent.

There are no provisions in the Standard requiring sensitive information.

12.  	Provide estimates of the hour burden of the collection of information.  The statement should:

*	Indicate the number of respondents, frequency of response, annual hour burden, and an
      explanation of how the burden was estimated.  Unless directed to do so, agencies should not
      conduct special surveys to obtain information on which to base hour burden estimates.
      Consultation with a sample (fewer than 10) of potential respondents is desirable.  If the hour
      burden on respondents is expected to vary widely because of differences in activity, size, or
      complexity, show the range of estimated hour burden, and explain the reasons for the variance.
      Generally, estimates should not include burden hours for customary and usual business practices.

*	If this request for approval covers more than one form, provide separate hour burden estimates
      for each form.
*	Provide estimates of annualized cost to respondents for the hour burdens for collections of
      information, identifying and using appropriate wage-rate categories.

Respondent Burden Hour and Cost Determinations

The Agency determined the wage rate from mean hourly wage earnings to represent the cost of employee time.  For the relevant standard occupational classification category, OSHA used the wage rates reported in the Bureau of Labor Statistics, U.S. Department of Labor.  Occupational Employment and Wage Statistics (OEWS), May 2020 [date accessed: December 22, 2021].  (OEWS data is available at https://www.bls.gov/oes/tables.htm.  To access a wage rate, select the year, "Occupation Profiles," and the Standard Occupational Classification (SOC) code.)

To account for fringe benefits, the Agency used the Bureau of Labor Statistics (BLS) Occupational Employment and Wage Statistics (OEWS) (2020).  Fringe markup is from the following BLS release: Employer Costs for Employee Compensation news release text; released 10:00 AM (EDT), December 17, 2021 (https://www.bls.gov/news.release/pdf/ecec.pdf). BLS reported that for civilian workers, fringe benefits accounted for 29.2 percent of total compensation, and wages accounted for the remaining 70.8 percent.  To calculate the loaded hourly wage for each occupation, the Agency divided the mean hourly wage rate minus the fringe benefits.

                         Table 1- Estimated Wage Rates
                WAGE HOUR ESTIMATES FOR CHEMICAL MANUFACTURING
                              Occupational Title
                        Standard Occupation Code (SOC)
                             Mean Hourly Wage Rate
                                      (A)
                               Fringe Benefits

                                      (B)
                           Loaded Hourly Wage Rate
                              (C) = (A)/((1-(B))
First-Line Supervisors/Managers of Construction Trades
47-1011
$35.09
29.2%
$49.56
Painters, Construction and Maintenance Workers
47-2141
$22.33
29.2%
$31.54
Secretaries
43-6014
$19.43
29.2%
$27.44
Occupational Health & Safety Specialists
19-5011
$37.55
29.2%
$53.04

According to the Preliminary Regulatory Impact Analysis (PRIA) completed for the proposed Standard, worker exposure to MDA occurs while applying coatings containing MDA to steel, concrete, and other construction-related surfaces.  The Mediated Rulemaking Advisory Committee ("Committee") convened to negotiate the Standard, as well as OSHA made a series of reasonable assumptions in estimating employee exposure to MDA.  The Committee and OSHA assumed that 66 establishments each employing six employees apply MDA-based coatings.  The National Paint and Coatings Association stated that MDA-based products is rarely used in paint and coating products.  OSHA assumes that workers at 33 establishments, each with ten job sites each year at which coatings are applied, or 330 job sites annually where potential exposures might occur.  OSHA originally assumed that, during these applications, 400 employees receive exposure to the MDA-based coatings each year.  The Agency now estimates that one-half this number, or 200 workers, receive exposures.

-
A summary of the burden hour and cost estimates for the information collection requirements specified by the Standard is provided in Table 1.

The following sections summarize the methodology used for estimating the number of burden hours and costs resulting from the information collection requirements of the MDA standard.

A.  Communication among employers (§ 1926.60(d))

OSHA assumes that each of the 330 job sites in which employers apply MDA-based coatings is a multi-employer worksite.  The Agency estimates a manager takes 15 minutes (15/60 hour) to inform other employers at each of these job sites, resulting in the following total annual burden hour and cost estimates:

      Burden hours:  330 job sites x 15/60 hour = 82 30/60 hours
                	    Cost:  82 30/60 (82.5) hours x $49.56 = $4,088.70

B.  Emergency situations (§ 1926.60(e))

Written plan (§ 1926.60(e)(1))

According to the PRIA, a supervisor takes one hour (1 hour) to review and revise a written emergency plan for each establishment (for a total of 33 hours for the 33 establishments covered by the Standard), while a secretary spends one-half hour (30/60 hour) typing the revised plan and distributing it to job sites where there is a potential for emergencies.  OSHA estimates that 10% of the 330 job sites, or 33 job sites, have written emergency plans.  Therefore, the total yearly burden hour and cost estimate for this provision is:

      Burden hours: (33 establishments x 1 hour) + (33 jobsites x 30/60 hour) = 49 30/60 hours
                	    Cost: (33 hours x $49.56) + (16 30/60 hours x $27.44) = $2,088.24

C.  Exposure monitoring (§ 1926.60(f))

Based on the PRIA, an occupational health and safety specialist takes two hours (2 hours) to distribute and attach portable air-sampling pumps to workers and record the sampling information (e.g., the name and exposure level of workers represented by the sample).

Initial monitoring (§ 1926.60(f)(2))

The Agency estimates that each establishment samples 10% (33) of the 330 job sites each year, resulting in a total annual burden hour and cost estimate of:

      Burden hours:  33 job sites x 2 hours = 66 hours
                	    Cost:  66 hours x $53.04 = $3,500.64

Periodic monitoring and monitoring frequency, and additional monitoring (§ 1926.60(f)(3) and (f)(5))

The PRIA assumed that each employer, on average, monitors one worker (for a total of 33 workers across the 33 establishments) each year under these provisions.  Periodic monitoring is unlikely because, while workers may be exposed above the PEL due to the short-term exposure, quarterly exposure monitoring would be uncommon. After all, the site projects are of short duration (less than three months).  Accordingly, the total yearly burden-hour and cost estimates for these exposure-monitoring requirements are:

      Burden hours:  33 workers x 2 hours = 66 hours
                	    Cost:  66 hours x $53.04 $3,500.64

Employee notification of monitoring results (§ 1926.60(f)(7))

The Agency assumes that a secretary takes five minutes (5/60 hour) to compile and post the written monitoring results and performs this task twice a year as required by paragraph (f)(3) of the Standard ("Periodic monitoring and monitoring frequency").  Accordingly, OSHA estimates that the total annual burden hours and costs resulting from this requirement are:

      Burden hours:  33 establishments x 2 postings x 5/60 hour = 5 30/60 hours
   	    	    Cost:  5 30/60(5.5) hours x $27.44 = $150.92

Visual monitoring (§ 1926.60(f)(8))

The Agency believes that each establishment visually inspects workers for MDA exposure once a year. An occupational health and safety specialist requires one-half hour (30/60 hour) to conduct an inspection and establish and maintain a record of corrective actions.  Therefore, the total annual burden hours and cost estimated for this task are:

      Burden hours:  33 establishments x 30/60 hour = 16 30/60 hours
                	    Cost:  16 30/60 hours x $53.04= $875.16

D.  Methods of compliance (§ 1926.60(h))

Compliance program (§ 1926.60(h)(5))

To estimate burden hours, OSHA assumes that an occupational health and safety specialist at each of the 33 establishments spends one and one-half hours (1 30/60 hours) once a year reviewing and updating existing compliance plans.  This requirement results in the following estimated total annual burden hours and cost:

      Burden hours:  33 establishments x 1 30/60 hours = 49 30/60 hours
                	    Cost:  49 30/60 hours x $53.04 = $2,625.48

E.  Respiratory Program (§ 1926.60(i))

As noted under Item 2 above, the respiratory protection collections of information are contained in the Respiratory Protection ICR, OMB Control Number 1218-0099 and thus are omitted here.

F.  Protective work clothing and equipment (§ 1926.60(i))

Removal and storage (§ 1926.60(j)(2)(v))

OSHA is taking no burden for this requirement because employers can use the language specified for labels under paragraph (l)(1)(ii) of the Standard for this purpose.  (See "Signs and labels (29 CFR 1926.60(l)(1))" under Item 2.)

Cleaning and replacement (§ 1926.60(j)(3)(iv) and (j)(3)(v))

The Agency assumes that employers have protective clothing and equipment laundered and cleaned under contract and that they change contractors infrequently.  Therefore, because the need to provide new contractors with the required information is minimal (i.e., employers give the information required to existing contractors during an earlier clearance period), OSHA takes no burden hours or cost for this paperwork requirement.

G.  Communication of hazards to employees (§ 1926.60(l))

Signs and labels (§ 1926.60(l)(2))

The provisions containing the paperwork requirements associated with signs and labels specify the specific language for these materials.  Therefore, OSHA is taking no burden for these provisions because it is providing the information needed by employers to meet these requirements (See "Controlling paperwork burden on the public," 5 CFR 1320.3(c)(2)).

Information and training (§ 1926.60(l)(3))

As noted in Section 2 above, The Agency has determined that the requirement for employers to make records available upon request to the Assistant Secretary is no longer considered a collection of information.  OSHA typically requests access to records during an inspection, and information collected by the Agency during the investigation is not subject to the PRA under 5 CFR 1320.4(a)(2), so no burden or cost is included for this item.

Access to training materials (§ 1926.60(l)(4))

Similarly, OSHA no longer considers the requirement to provide a copy of the regulation and training materials a collection of information under the Paperwork Reduction Act, as information collected by the Agency during the investigation is not subject to the PRA under 5 CFR 1320.4(a)(2). The Agency does not anticipate NIOSH to request employers to make available records during the approval period, so no burden or cost is included for this item.

H.  Medical surveillance (§ 1926.60(n)(1-5))

Initial examinations (§ 1926.60(n)(2))

OSHA assumes that establishments covered by the Standard hire 138 covered workers each year (200 total covered workers x 69% turnover rate). Each of these workers must remain away from the job for one and one-half hours (1 30/60 hours) to take the initial medical examination.  Accordingly, the total annual burden-hour and cost estimates for this requirement are:

      Burden hours:  138examinations x 1 30/60 hours = 207 hours
                	    Cost:  207 hours x $31.54 = $6,528.78

Periodic examinations (§ 1926.60(n)(3))

OSHA estimates that each of the 200 covered workers receives an annual examination and that each examination takes one and one-half hours (1 30/60 hours) of worker time.  The resulting total annual burden hour and cost estimates for this provision are:

      Burden hours:  200 examinations x 1 30/60 hours = 300 hours
                	    Cost:  300 hours x $31.54 = $9,462

Emergency examinations and additional examinations (§ 1926.60(n)(4) and (n)(5))

The Agency believes that 1% (2) of the 200 covered workers require an emergency or additional medical examination each year. Each of these workers remains away from the job one and one-half hours (1 30/60 hours) to receive the medical examination.  Thus, the total annual burden hour and cost estimates for this requirement are:

      Burden hours:  2 examinations x 1 30/60 hours = 3 hours
                	    Cost:  3 hours x $31.54 = $94.62

Multiple physician review mechanism (§ 1926.60(n)(6))

OSHA assumes that 1% (2) of the covered workers undergo multiple physician reviews yearly, either because of emergency MDA exposure or they have signs or symptoms of MDA exposure. They spend one-half hours (1 30/60 hour) taking the examination.  Accordingly, the estimated total annual burden hours and cost for this examination are:

      Burden hours:  2 reviews x 1 30/60 hours = 3 hours
                	    Cost:  3 hours x $31.54 = $94.62

Information provided to the examining physician (§ 1926.60(n)(7))

For each medical examination or multiple-physician review administered to a worker, the Agency believes that it takes a secretary five minutes 5/60 hour) to compile the required information and provide it to the physician.  Based on previous determinations made in this ICR, the Standard requires 138 initial examinations, 200 periodic examinations, two emergency examinations and additional examinations, and two multiple physician reviews each year for 342 tests/reviews.  These examinations/reviews result in the following total annual burden hour and cost estimates:

      Burden hours:  342 examinations/reviews x 5/60 hour = 28 30/60 hours
                	    Cost:  28 30/60 hours x $27.44 = $782.04

Physician's written opinion (§ 1926.60(n)(8))
OSHA assumes a secretary spends five minutes 5/60 hour) delivering a copy of the physician's written opinion to each worker who receives a medical examination or multiple-physician review.  Based on the determination made under "Information provided to the examining physician (29 CFR 1926.60(n)(7))" above, employers administer 342 examinations/reviews each year that result in a physician's opinion covered by this provision.  Thus, the estimated total annual burden hours and cost of this requirement are:

      Burden hours:  342 examinations/reviews x 5/60 hour = 28 30/60 hours
                	    Cost:  28 30/60 hours x $27.44 = $782.04

Medical removal (§ 1926.60(n)(9))

An employer bases the decision to medically remove a worker on a written recommendation provided by the examining physician after one of the medical examinations administered under the medical-surveillance program; paragraph (n)(8) of the Standard ("Physician's written opinion"), therefore, covers these recommendations.  Accordingly, the Agency included no additional burden hours or cost for this requirement in this ICR.

 Recordkeeping (§ 1926.60(o))

Objective data for exempted operations, and historical monitoring data (§ 1926.60(o)(1) and (o)(2))

The Agency assumes that employers rely on objective data or historical monitoring data for 90% of the 330 job sites each year, or 297 job sites.  OSHA estimates that a supervisor takes 10 minutes (10/60 hours) for each job site to justify and document the use of objective data or historical monitoring.  Thus, the estimated total annual burden hours and cost of this requirement are:

      Burden hours:  297 job sites x 10/60 hour = 49 30/60 hours
                	    Cost:  49 30/60 hours x $49.56 = $2,453.22

Exposure measurements (§ 1926.60(o)(4))

OSHA assumes that a secretary takes five minutes (5/60 hours) to establish, maintain, and update each exposure-monitoring record.  As noted above, under "Exposure monitoring (29 CFR 1926.60(f))," once a year, employers conduct initial monitoring at each of the 33 establishments and provide 33 workers with periodic and additional monitoring; therefore, these monitoring requirements result in a total of 66 records.  The estimated total annual burden hours and cost associated with this recordkeeping requirement are:

      Burden hours:  66 records x 5/60 hour = 5 30/60 hours
                	    Cost:  5 30/60 hours x $27.44 = $150.92

Medical surveillance (§ 1926.60(o)(5))

The determinations made under "Information provided to the examining physician" above show that employers provide 342 medical examinations/reviews per year, requiring a written record.  The Agency assumes that a secretary spends five minutes (5/60 hour) per year establishing, maintaining, and updating each of these records, resulting in the following total annual burden hour and cost estimates:

      Burden hours:  342 records x 5/60 hour = 28 30/60 hours
                	    Cost:  28 30/60(28.5) hours x $27.44 = $782.04

Training records (§ 1926.60(o)(6))

OSHA estimates that a secretary requires five minutes (5/60 hour) to establish, maintain, and update each of the 171 training records determined above under "Information and training (29 CFR 1926.60(l)(3))" (i.e., 33 records for annual training + 138 records for initial training).  Accordingly, the total annual burden hours and cost estimated for this provision are:

      Burden hours:  171 records x 5/60 hour = 14 15/60 hours
                	    Cost:  14 15/60(14.25) hours x $27.44 = $391.02

Availability (§ 1926.60(o)(7))
The Agency assumes that 10% (34) (200 existing workers + 138 (resulting from turnover) x 10% = 34 workers) or their designated representatives request access to medical records, exposure-monitoring records, written compliance plans, training records, and training materials (workers only) each year.  OSHA estimates that a secretary takes five minutes (5/60 hours) to make the requested record available to each worker.  Therefore, the total yearly burden hours and cost associated with making the required records available to workers is:

      Burden hours:  34 worker-related requests x 5/60 hour) = 2 50/60 hours
                	    Cost:  2 50/60 hours x $27.44 = $77.74

13.	Provide an estimate for the total annual cost burden to respondents or recordkeepers resulting from information collection.  (Do not include the cost of any hour burden shown in Items 12 and 14).

*	The cost estimate should be split into two components:  (a) a total capital and start-up cost component (annualized over its expected useful life); and (b) a total operation and maintenance and purchase of services component.  The estimates should take into account costs associated with generating, maintaining, and disclosing or providing the information.  Include descriptions of methods used to estimate major cost factors including system and technology acquisition, expected useful life of capital equipment, the discount rate(s), and the time period over which costs will be incurred.  Capital and start-up costs include, among other items, preparations for collecting information such as purchasing computers and software; monitoring, sampling, drilling, and testing equipment; and record storage facilities.

      If cost estimates are expected to vary widely, agencies should present ranges of cost burdens and explain the reasons for the variance.  The cost of purchasing or contracting out information collection services should be a part of this cost burden estimate.  In developing cost burden estimates, agencies may consult with a sample of respondent (fewer than 10), utilize the 60-day pre-OMB submission public comment process and use existing economic or regulatory impact analysis associated with the rulemaking containing the information collection, as appropriate.

*	Generally, estimates should not include purchases of equipment or services, or portions thereof, made:  (1) prior to October 1, 1995, (2) to achieve regulatory compliance with requirements not associated with the information collection, (3) for reasons other than to provide information or keep records for the government, or (4) as part of customary and usual business or private practices.

Capital Cost Determinations

From these determinations (described below), the Agency estimates that the total capital cost of these requirements each year is $152,658.  This total consists of $5,940.00 for analyzing exposure-monitoring samples and $146,718.00 to administer medical examinations.

(A)  Exposure monitoring (§ 1926.60(f))

Based on information obtained from the Agency's Salt Lake City Technical Center, the average cost for an OSHA-accredited laboratory to analyze a sample of airborne MDA is about $90.  The annual fee to explore the 66 monitoring samples collected by the 33 establishments covered by the Standard (see the determinations made in Item 12 above under "Exposure monitoring" (29 CFR 1926.60(f)) is:

   Cost:  66 samples x $90 = $5,940.00

(B)  Medical surveillance (§ 1926.60(n))

Consistent with recent ICRs and regulatory analyses, the Agency estimates that each medical examination costs $429.  As noted above under "Information provided to the examining physician (§ 1926.60(n)(7))" in Item 12 above, the 33 establishments covered by the Standard administer a total of 342 medical examinations each year, resulting in the following annual cost:

    		Cost:  342 examinations x $429 = $146,718.00

14.  	Provide estimates of annualized cost to the Federal government.  Also, provide a description of the method used to estimate cost, which should include quantification of hours, operational expenses (such as equipment, overhead, printing, and support staff), and any other expense that would not have been incurred without this collection of information.  Agencies also may aggregate cost estimates from Items 12, 13, and 14 in a single table.

There is no cost to the Federal Government.

15.  Explain the reasons for any program changes or adjustments.

The Agency requests an adjustment increase of 20 hours, from 986 to 1006.05 hours, and a cost increase of $68,724 to $146,718. There are two main reasons for this adjustment. First, the Agency has updated the data sources used to estimate the number of respondents, burden, and cost (such as the loaded hourly wage rates, turnover rate, and unit cost for laboratory analysis and medical exams). Second, this ICR renewal switches from using rounded decimal estimates of unit burden to unrounded fractions (for instance, from 0.08 to 5/60 for an item with five minutes of burden).

Please see the burden summary in Table 2 located after Item 18.

16.	For collections of information whose results will be published, outline plans for tabulation and publication.  Address any complex analytical techniques that will be used.  Provide the time schedule for the entire project, including beginning and ending dates of the collection information, completion of report, publication dates, and other actions.

No collection of information will be published.

17. 	If seeking approval to not display the expiration date for OMB approval of the information collection, explain the reasons that display would be appropriate.

	OSHA lists current valid control numbers in §§ 1910.8, 1915.8, 1917.4, 1918.4, and 1926.5 and publishes the expiration date in the Federal Register notice announcing OMB approval of the information-collection requirement (see 5 CFR 1320.3(f)(3)).  OSHA believes this is the most appropriate and accurate mechanism to inform interested parties of these expiration dates.

18.  	Explain each exception to the certification statement.

OSHA is not seeking such an exception.

B. COLLECTION OF INFORMATION EMPLOYING STATISTICAL METHODS.

There are no collections of information employing statistical methods.

Table 2. Estimated Annualized Respondent Hour and Cost Burden Table
           Information Collection Requirements (Across Top of Rows)
                              Type of Respondent*
Number of Respondents
                      Number of Responses per Respondent
                           Total Number of Responses
                     Average Burden per Response (In Hrs.)
                         Total Burden Hours (Rounded)
                             Avg. Hourly Wage Rate
Total Burden
Costs
Communication among employers
Manager
330
.1
330
15/60
82 30/60
49.56
$4,088.70
 Plan
Manager
330
.2
66
30/60
49 30/60
$49.56/$27.44
$2,088.24
Exposure Monitoring

Initial Monitoring
S&H Specialist
330
.1
33
2
66
$53.04
$3,500.64
Periodic Monitoring
S&H Specialist
330
.1
33
2
66
$53.03
$3,500.64
Employee Notification of Monitoring Results
Secretary
330
.2
66
5.5
5 30/60
$27.44
$150.92
Visual Monitoring
S&H Specialist
330
.1
33
30/60
16 30/60
$53.04
$875.16
 Methods of Compliance

Compliance Program
S&H
Specialist
330
.1
33
1 30/60
49 30/60
$53.04
$2,625.48
Medical Surveillance

Initial Exams
Workers
330
.4
138
1 30/60
207
$31.54
$6,528.78
Periodic Exams
Workers
330
.9
300
1 30/60
300
$31.54
$9,462
Emergency Exams
Workers
330
.006
2
1 30/60
3
$31.54
$94.62
Multiple Physician Review mechanism
Workers
330
.006
2
1 30/60
3
$31.54
$94.62
Information Provided to Examining Physician
Secretary
330
1.04
342
5/60
28 30/60
$27.44
$782.04
Physician Written Opinion
Secretary
330
1.04
342
5/60
28 30/60
$27.44
782.04
Recordkeeping

Objective data for exempted operations, and historical monitoring data
Supervisor
330
.9
297
10/60
49 30/60
$49.56
$2453.22
Exposure Measurements
Secretary
330
.2
66
5/60
5 30/60
$27.44$
$150.98
Medical Surveillance
Secretary
330
1.04
342
5/60
28 30/60
$27.44
$782.04
Training Records
Secretary
330
.52
171
5/60
14 15/60
$27.44
$391.02
Availability
Secretary
330
.52
34
5/60
2 50/60
$27.44
$77.74

2,630

10,006.05

$38,429

SEC. 2. Congressional Findings and Purpose
(a) The Congress finds that personal injuries and illnesses arising out of work situations impose a substantial burden upon, and are a hindrance to, interstate commerce in terms of lost production, wage loss, medical expenses, and disability compensation payments. (b) The Congress declares it to be its purpose and policy, through the exercise of its powers to regulate commerce among the several States and with foreign nations and to provide for the general welfare, to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources --
29 USC 651
(1) by encouraging employers and employees in their efforts to reduce the number of occupational safety and health hazards at their places of employment, and to stimulate employers and employees to institute new and to perfect existing programs for providing safe and healthful working conditions; (2) by providing that employers and employees have separate but dependent responsibilities and rights with respect to achieving safe and healthful working conditions; (3) by authorizing the Secretary of Labor to set mandatory occupational safety and health standards applicable to businesses affecting interstate commerce, and by creating an Occupational Safety and Health Review Commission for carrying out adjudicatory functions under the Act; (4) by building upon advances already made through employer and employee initiative for providing safe and healthful working conditions; (5) by providing for research in the field of occupational safety and health, including the psychological factors involved, and by developing innovative methods, techniques, and approaches for dealing with occupational safety and health problems; (6) by exploring ways to discover latent diseases, establishing causal connections between diseases and work in environmental conditions, and conducting other research relating to health problems, in recognition of the fact that occupational health standards present problems often different from those involved in occupational safety; (7) by providing medical criteria which will assure insofar as practicable that no employee will suffer diminished health, functional capacity, or life expectancy as a result of his work experience; (8) by providing for training programs to increase the number and competence of personnel engaged in the field of occupational safety and health; affecting the OSH Act since its passage in 1970 through January 1, 2004. (9) by providing for the development and promulgation of occupational safety and health standards; (10) by providing an effective enforcement program which shall include a prohibition against giving advance notice of any inspection and sanctions for any individual violating this prohibition;
(11) by encouraging the States to assume the fullest responsibility for the administration and enforcement of their occupational safety and health laws by providing grants to the States to assist in identifying their needs and responsibilities in the area of occupational safety and health, to develop plans in accordance with the provisions of this Act, to improve the administration and enforcement of State occupational safety and health laws, and to conduct experimental and demonstration projects in connection therewith; (12) by providing for appropriate reporting procedures with respect to occupational safety and health which procedures will help achieve the objectives of this Act and accurately describe the nature of the occupational safety and health problem; (13) by encouraging joint labor-management efforts to reduce injuries and disease arising out of employment.

                  6. Occupational Safety and Health Standards
29 USC 655:
(a) Without regard to chapter 5 of title 5, United States Code, or to the other subsections of this section, the Secretary shall, as soon as practicable during the period beginning with the effective date of this Act and ending two years after such date, by rule promulgate as an occupational safety or health standard any national consensus standard, and any established Federal standard, unless he determines that the promulgation of such a standard would not result in improved safety or health for specifically designated employees. In the event of conflict among any such standards, the Secretary shall promulgate the standard which assures the greatest protection of the safety or health of the affected employees. (b) The Secretary may by rule promulgate, modify, or revoke any occupational safety or health standard in the following manner:
(1) Whenever the Secretary, upon the basis of information submitted to him in writing by an interested person, a representative of any organization of employers or employees, a nationally recognized standards-producing organization, the Secretary of Health and Human Services, the National Institute for Occupational Safety and Health, or a State or political subdivision, or on the basis of information developed by the Secretary or otherwise available to him, determines that a rule should be promulgated in order to serve the objectives of this Act, the Secretary may request the recommendations of an advisory committee appointed under section 7 of this Act. The Secretary shall provide such an advisory committee with any proposals of his own or of the Secretary of Health and Human Services, together with all pertinent factual information developed by the Secretary or the Secretary of Health and Human Services, or otherwise available, including the results of research, demonstrations, and experiments. An advisory committee shall submit to the Secretary its recommendations regarding the rule to be promulgated within ninety days from the date of its appointment or within such longer or shorter period as may be prescribed by the Secretary, but in no event for a period which is longer than two hundred and seventy days. (2) The Secretary shall publish a proposed rule promulgating, modifying, or revoking an occupational safety or health standard in the Federal Register and shall afford interested persons a period of thirty days after publication to submit written data or comments. Where an advisory committee is appointed and the Secretary determines that a rule should be issued, he shall publish the proposed rule within sixty days after the submission of the advisory committee's recommendations or the expiration of the period prescribed by the Secretary for such submission. (3) On or before the last day of the period provided for the submission of written data or comments under paragraph (2), any interested person may file with the Secretary written objections to the proposed rule, stating the grounds therefore and requesting a public hearing on such objections. Within thirty days after the last day for filing such objections, the Secretary shall publish in the Federal Register a notice specifying the occupational safety or health standard to which objections have been filed and a hearing requested, and specifying a time and place for such hearing.

SEC. 8. Inspections, Investigations, and Recordkeeping
(a) In order to carry out the purposes of this Act, the Secretary, upon presenting appropriate credentials to the owner, operator, or agent in charge, is authorized --
29 USC 657

(1) to enter without delay and at reasonable times any factory, plant, establishment, construction site, or other area, workplace or environment where work is performed by an employee of an employer; and

(2) to inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such employer, owner, operator, agent or employee.

(b) In making his inspections and investigations under this Act the Secretary may require the attendance and testimony of witnesses and the production of evidence under oath. Witnesses shall be paid the same fees and mileage that are paid witnesses in the courts of the United States. In case of a contumacy, failure, or refusal of any person to obey such an order, any district court of the United States or the United States courts of any territory or possession, within the jurisdiction of which such person is found, or resides or transacts business, upon the application by the Secretary, shall have jurisdiction to issue to such person an order requiring such person to appear to produce evidence if, as, and when so ordered, and to give testimony relating to the matter under investigation or in question, and any failure to obey such order of the court may be punished by said court as a contempt thereof.

(c) (1) Each employer shall make, keep and preserve, and make available to the Secretary or the Secretary of Health and Human Services, such records regarding his activities relating to this Act as the Secretary, in cooperation with the Secretary of Health and Human Services, may prescribe by regulation as necessary or appropriate for the enforcement of this Act or for developing information regarding the causes and prevention of occupational accidents and illnesses. In order to carry out the provisions of this paragraph such regulations may include provisions requiring employers to conduct periodic inspections. The Secretary shall also issue regulations requiring that employers, through posting of notices or other appropriate means, keep their employees informed of their protections and obligations under this Act, including the provisions of applicable standards.

(2) The Secretary, in cooperation with the Secretary of Health and Human Services, shall prescribe regulations requiring employers to maintain accurate records of, and to make periodic reports on, work-related deaths, injuries and illnesses other than minor injuries requiring only first aid treatment and which do not involve medical treatment, loss of consciousness, restriction of work or motion, or transfer to another job.

(3) The Secretary, in cooperation with the Secretary of Health and Human Services, shall issue regulations requiring employers to maintain accurate records of employee exposures to potentially toxic materials or harmful physical agents which are required to be monitored or measured under section 6. Such regulations shall provide employees or their representatives with an opportunity to observe such monitoring or measuring, and to have access to the records thereof. Such regulations shall also make appropriate provision for each employee or former employee to have access to such records as will indicate his own exposure to toxic materials or harmful physical agents. Each employer shall promptly notify any employee who has been or is being exposed to toxic materials or harmful physical agents in concentrations or at levels which exceed those prescribed by an applicable occupational safety and health standard promulgated under section 6, and shall inform any employee who is being thus exposed of the corrective action being taken.

(d) Any information obtained by the Secretary, the Secretary of Health and Human Services, or a State agency under this Act shall be obtained with a minimum burden upon employers, especially those operating small businesses. Unnecessary duplication of efforts in obtaining information shall be reduced to the maximum extent feasible.

(e) Subject to regulations issued by the Secretary, a representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany the Secretary or his authorized representative during the physical inspection of any workplace under subsection (a) for the purpose of aiding such inspection. Where there is no authorized employee representative, the Secretary or his authorized representative shall consult with a reasonable number of employees concerning matters of health and safety in the workplace.

(f) (1) Any employees or representative of employees who believe that a violation of a safety or health standard exists that threatens physical harm, or that an imminent danger exists, may request an inspection by giving notice to the Secretary or his authorized representative of such violation or danger. Any such notice shall be reduced to writing, shall set forth with reasonable particularity the grounds for the notice, and shall be signed by the employees or representative of employees, and a copy shall be provided the employer or his agent no later than at the time of inspection, except that, upon the request of the person giving such notice, his name and the names of individual employees referred to therein shall not appear in such copy or on any record published, released, or made available pursuant to subsection (g) of this section. If upon receipt of such notification the Secretary determines there are reasonable grounds to believe that such violation or danger exists, he shall make a special inspection in accordance with the provisions of this section as soon as practicable, to determine if such violation or danger exists. If the Secretary determines there are no reasonable grounds to believe that a violation or danger exists he shall notify the employees or representative of the employees in writing of such determination.

(2) Prior to or during any inspection of a workplace, any employees or representative of employees employed in such workplace may notify the Secretary or any representative of the Secretary responsible for conducting the inspection, in writing, of any violation of this Act which they have reason to believe exists in such workplace. The Secretary shall, by regulation, establish procedures for informal review of any refusal by a representative of the Secretary to issue a citation with respect to any such alleged violation and shall furnish the employees or representative of employees requesting such review a written statement of the reasons for the Secretary's final disposition of the case.

(g) (1) The Secretary and Secretary of Health and Human Services are authorized to compile, analyze, and publish, either in summary or detailed form, all reports or information obtained under this section.

(2) The Secretary and the Secretary of Health and Human Services shall each prescribe such rules and regulations as he may deem necessary to carry out their responsibilities under this Act, including rules and regulations dealing with the inspection of an employer's establishment.

(h) The Secretary shall not use the results of enforcement activities, such as the number of citations issued or penalties assessed, to evaluate employees directly involved in enforcement activities under this Act or to impose quotas or goals with regard to the results of such activities.
                                          Pub. L. 105-198 added subsection (h).

§ 1926.60 Methylenedianiline.
  (a) Scope and application.
   (1) This section applies to all construction work as defined in 29 CFR 1910.12(b), in which there is exposure to MDA, including but not limited to the following:
     (i) Construction, alteration, repair, maintenance, or renovation of structures, substrates, or portions thereof, that contain MDA;
     (ii) Installation or the finishing of surfaces with products containing MDA;
     (iii) MDA spill/emergency cleanup at construction sites; and
     (iv) Transportation, disposal, storage, or containment of MDA or products containing MDA on the site or location at which construction activities are performed.
   (2) Except as provided in paragraphs (a)(7) and (f)(5) of this section, this section does not apply to the processing, use, and handling of products containing MDA where initial monitoring indicates that the product is not capable of releasing MDA in excess of the action level under the expected conditions of processing, use, and handling which will cause the greatest possible release; and where no "dermal exposure to MDA" can occur.
   (3) Except as provided in paragraph (a)(7) of this section, this section does not apply to the processing, use, and handling of products containing MDA where objective data are reasonably relied upon which demonstrate the product is not capable of releasing MDA under the expected conditions of processing, use, and handling which will cause the greatest possible release; and where no "dermal exposure to MDA" can occur.
   (4) Except as provided in paragraph (a)(7) of this section, this section does not apply to the storage, transportation, distribution or sale of MDA in intact containers sealed in such a manner as to contain the MDA dusts, vapors, or liquids, except for the provisions of 29 CFR 1910.1200 and paragraph (e) of this section.
   (5) Except as provided in paragraph (a)(7) of this section, this section does not apply to materials in any form which contain less than 0.1% MDA by weight or volume.
   (6) Except as provided in paragraph (a)(7) of this section, this section does not apply to "finished articles containing MDA."
   (7) Where products containing MDA are exempted under paragraphs (a)(2) through (a)(6) of this section, the employer shall maintain records of the initial monitoring results or objective data supporting that exemption and the basis for the employer's reliance on the data, as provided in the recordkeeping provision of paragraph (o) of this section.
  (b) Definitions. For the purpose of this section, the following definitions shall apply:
   Action level means a concentration of airborne MDA of 5 ppb as an eight (8)-hour time-weighted average.
   Assistant Secretary means the Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor, or designee.
   Authorized person means any person specifically authorized by the employer whose duties require the person to enter a regulated area, or any person entering such an area as a designated representative of employees for the purpose of exercising the right to observe monitoring and measuring procedures under paragraph (p) of this section, or any other person authorized by the Act or regulations issued under the Act.
   Container means any barrel, bottle, can, cylinder, drum, reaction vessel, storage tank, commercial packaging or the like, but does not include piping systems.
   Decontamination area means an area outside of but as near as practical to the regulated area, consisting of an equipment storage area, wash area, and clean change area, which is used for the decontamination of workers, materials, and equipment contaminated with MDA.
   Dermal exposure to MDA occurs where employees are engaged in the handling, application or use of mixtures or materials containing MDA, with any of the following non-airborne forms of MDA:
     (i) Liquid, powdered, granular, or flaked mixtures containing MDA in concentrations greater than 0.1% by weight or volume; and
     (ii) Materials other than "finished articles" containing MDA in concentrations greater than 0.1% by weight or volume.
   Director means the Director of the National Institute for Occupational Safety and Health, U.S. Department of Health and Human Services, or designee.
   Emergency means any occurrence such as, but not limited to, equipment failure, rupture of containers, or failure of control equipment which results in an unexpected and potentially hazardous release of MDA.
   Employee exposure means exposure to MDA which would occur if the employee were not using respirators or protective work clothing and equipment.
   Finished article containing MDA is defined as a manufactured item:
     (i) Which is formed to a specific shape or design during manufacture;
     (ii) Which has end use function(s) dependent in whole or part upon its shape or design during end use; and
     (iii) Where applicable, is an item which is fully cured by virtue of having been subjected to the conditions (temperature, time) necessary to complete the desired chemical reaction.
   Historical monitoring data means monitoring data for construction jobs that meet the following conditions:
     (i) The data upon which judgments are based are scientifically sound and were collected using methods that are sufficiently accurate and precise;
     (ii) The processes and work practices that were in use when the historical monitoring data were obtained are essentially the same as those to be used during the job for which initial monitoring will not be performed;
     (iii) The characteristics of the MDA-containing material being handled when the historical monitoring data were obtained are the same as those on the job for which initial monitoring will not be performed;
     (iv) Environmental conditions prevailing when the historical monitoring data were obtained are the same as those on the job for which initial monitoring will not be performed; and
     (v) Other data relevant to the operations, materials, processing, or employee exposures covered by the exception are substantially similar. The data must be scientifically sound, the characteristics of the MDA containing material must be similar and the environmental conditions comparable.
   4,4 ′Methylenedianiline or MDA means the chemical; 4,4′-diaminodiphenylmethane, Chemical Abstract Service Registry number 101-77-9, in the form of a vapor, liquid, or solid. The definition also includes the salts of MDA.
   Regulated Areas means areas where airborne concentrations of MDA exceed or can reasonably be expected to exceed, the permissible exposure limits, or where "dermal exposure to MDA" can occur.
   STEL means short term exposure limit as determined by any 15-minute sample period.
  (c) Permissible exposure limits. The employer shall assure that no employee is exposed to an airborne concentration of MDA in excess of ten parts per billion (10 ppb) as an 8-hour time-weighted average and a STEL of one hundred parts per billion (100 ppb).
  (d) Communication among employers. On multi-employer worksites, an employer performing work involving the application of MDA or materials containing MDA for which establishment of one or more regulated areas is required shall inform other employers on the site of the nature of the employer's work with MDA and of the existence of, and requirements pertaining to, regulated areas.
  (e) Emergency situations -
   (1) Written plan.
     (i) A written plan for emergency situations shall be developed for each construction operation where there is a possibility of an emergency. The plan shall include procedures where the employer identifies emergency escape routes for his employees at each construction site before the construction operation begins. Appropriate portions of the plan shall be implemented in the event of an emergency.
     (ii) The plan shall specifically provide that employees engaged in correcting emergency conditions shall be equipped with the appropriate personal protective equipment and clothing as required in paragraphs (i) and (j) of this section until the emergency is abated.
     (iii) The plan shall specifically include provisions for alerting and evacuating affected employees as well as the applicable elements prescribed in 29 CFR 1910.38 and 29 CFR 1910.39, "Emergency action plans" and "Fire prevention plans," respectively.
   (2) Alerting employees. Where there is the possibility of employee exposure to MDA due to an emergency, means shall be developed to promptly alert employees who have the potential to be directly exposed. Affected employees not engaged in correcting emergency conditions shall be evacuated immediately in the event that an emergency occurs. Means shall also be developed for alerting other employees who may be exposed as a result of the emergency.
  (f) Exposure monitoring -
   (1) General.
     (i) Determinations of employee exposure shall be made from breathing zone air samples that are representative of each employee's exposure to airborne MDA over an eight (8) hour period. Determination of employee exposure to the STEL shall be made from breathing zone air samples collected over a 15 minute sampling period.
     (ii) Representative employee exposure shall be determined on the basis of one or more samples representing full shift exposure for each shift for each job classification in each work area where exposure to MDA may occur.
     (iii) Where the employer can document that exposure levels are equivalent for similar operations in different work shifts, the employer shall only be required to determine representative employee exposure for that operation during one shift.
   (2) Initial monitoring. Each employer who has a workplace or work operation covered by this standard shall perform initial monitoring to determine accurately the airborne concentrations of MDA to which employees may be exposed unless:
     (i) The employer can demonstrate, on the basis of objective data, that the MDA-containing product or material being handled cannot cause exposures above the standard's action level, even under worst-case release conditions; or
     (ii) The employer has historical monitoring or other data demonstrating that exposures on a particular job will be below the action level.
   (3) Periodic monitoring and monitoring frequency.
     (i) If the monitoring required by paragraph (f)(2) of this section reveals employee exposure at or above the action level, but at or below the PELs, the employer shall repeat such monitoring for each such employee at least every six (6) months.
     (ii) If the monitoring required by paragraph (f)(2) of this section reveals employee exposure above the PELs, the employer shall repeat such monitoring for each such employee at least every three (3) months.
     (iii) Employers who are conducting MDA operations within a regulated area can forego periodic monitoring if the employees are all wearing supplied-air respirators while working in the regulated area.
     (iv) The employer may alter the monitoring schedule from every three months to every six months for any employee for whom two consecutive measurements taken at least 7 days apart indicate that the employee exposure has decreased to below the PELs but above the action level.
   (4) Termination of monitoring.
     (i) If the initial monitoring required by paragraph (f)(2) of this section reveals employee exposure to be below the action level, the employer may discontinue the monitoring for that employee, except as otherwise required by paragraph (f)(5) of this section.
     (ii) If the periodic monitoring required by paragraph (f)(3) of this section reveals that employee exposures, as indicated by at least two consecutive measurements taken at least 7 days apart, are below the action level the employer may discontinue the monitoring for that employee, except as otherwise required by paragraph (f)(5) of this section.
   (5) Additional monitoring. The employer shall institute the exposure monitoring required under paragraphs (f)(2) and (f)(3) of this section when there has been a change in production process, chemicals present, control equipment, personnel, or work practices which may result in new or additional exposures to MDA, or when the employer has any reason to suspect a change which may result in new or additional exposures.
   (6) Accuracy of monitoring. Monitoring shall be accurate, to a confidence level of 95 percent, to within plus or minus 25 percent for airborne concentrations of MDA.
   (7) Employee notification of monitoring results.
     (i) The employer must, as soon as possible but no later than 5 working days after the receipt of the results of any monitoring performed under this section, notify each affected employee of these results either individually in writing or by posting the results in an appropriate location that is accessible to employees.
     (ii) The written notification required by paragraph (f)(7)(i) of this section shall contain the corrective action being taken by the employer or any other protective measures which have been implemented to reduce the employee exposure to or below the PELs, wherever the PELs are exceeded.
   (8) Visual monitoring. The employer shall make routine inspections of employee hands, face and forearms potentially exposed to MDA. Other potential dermal exposures reported by the employee must be referred to the appropriate medical personnel for observation. If the employer determines that the employee has been exposed to MDA the employer shall:
     (i) Determine the source of exposure;
     (ii) Implement protective measures to correct the hazard; and
     (iii) Maintain records of the corrective actions in accordance with paragraph (o) of this section.
  (g) Regulated areas -
   (1) Establishment -
     (i) Airborne exposures. The employer shall establish regulated areas where airborne concentrations of MDA exceed or can reasonably be expected to exceed, the permissible exposure limits.
     (ii) Dermal exposures. Where employees are subject to "dermal exposure to MDA" the employer shall establish those work areas as regulated areas.
   (2) Demarcation. Regulated areas shall be demarcated from the rest of the workplace in a manner that minimizes the number of persons potentially exposed.
   (3) Access. Access to regulated areas shall be limited to authorized persons.
   (4) Personal protective equipment and clothing. Each person entering a regulated area shall be supplied with, and required to use, the appropriate personal protective clothing and equipment in accordance with paragraphs (i) and (j) of this section.
   (5) Prohibited activities. The employer shall ensure that employees do not eat, drink, smoke, chew tobacco or gum, or apply cosmetics in regulated areas.
  (h) Methods of compliance -
   (1) Engineering controls and work practices and respirators.
     (i) The employer shall use one or any combination of the following control methods to achieve compliance with the permissible exposure limits prescribed by paragraph (c) of this section:
      (A) Local exhaust ventilation equipped with HEPA filter dust collection systems;
      (B) General ventilation systems;
      (C) Use of workpractices; or
      (D) Other engineering controls such as isolation and enclosure that the Assistant Secretary can show to be feasible.
     (ii) Wherever the feasible engineering controls and work practices "which can be instituted are not sufficient to reduce employee exposure to or below the PELs, the employer shall use them to reduce employee exposure to the lowest levels achievable by these controls and shall supplement them by the use of respiratory protective devices which comply with the requirements of paragraph (i) of this section.
   (2) Special Provisions. For workers engaged in spray application methods, respiratory protection must be used in addition to feasible engineering controls and work practices to reduce employee exposure to or below the PELs.
   (3) Prohibitions. Compressed air shall not be used to remove MDA, unless the compressed air is used in conjunction with an enclosed ventilation system designed to capture the dust cloud created by the compressed air.
   (4) Employee rotation. The employer shall not use employee rotation as a means of compliance with the exposure limits prescribed in paragraph (c) of this section.
   (5) Compliance program.
     (i) The employer shall establish and implement a written program to reduce employee exposure to or below the PELs by means of engineering and work practice controls, as required by paragraph (h)(1) of this section, and by use of respiratory protection where permitted under this section.
     (ii) Upon request this written program shall be furnished for examination and copying to the Assistant Secretary, the Director, affected employees and designated employee representatives. The employer shall review and, as necessary, update such plans at least once every 12 months to make certain they reflect the current status of the program.
  (i) Respiratory protection -
   (1) General. For employees who use respirators required by this section, the employer must provide each employee an appropriate respirator that complies with the requirements of this paragraph. Respirators must be used during:
     (i) Periods necessary to install or implement feasible engineering and work-practice controls.
     (ii) Work operations, such as maintenance and repair activities and spray-application processes, for which engineering and work-practice controls are not feasible.
     (iii) Work operations for which feasible engineering and work-practice controls are not yet sufficient to reduce employee exposure to or below the PELs.
     (iv) Emergencies.
   (2) Respirator program. The employer must implement a respiratory protection program in accordance with § 1910.134 (b) through (d) (except (d)(1)(iii)), and (f) through (m), which covers each employee required by this section to use a respirator.
   (3) Respirator selection.
     (i) Employers must:
      (A) Select, and provide to employees, the appropriate respirators specified in paragraph (d)(3)(i)(A) of 29 CFR 1910.134.
      (B) Provide HEPA filters for powered and non-powered air-purifying respirators.
      (C) For escape, provide employees with one of the following respirator options: Any self-contained breathing apparatus with a full facepiece or hood operated in the positive-pressure or continuous-flow mode; or a full facepiece air-purifying respirator.
      (D) Provide a combination HEPA filter and organic vapor canister or cartridge with air-purifying respirators when MDA is in liquid form or used as part of a process requiring heat.
     (ii) An employee who cannot use a negative-pressure respirator must be given the option of using a positive-pressure respirator, or a supplied-air respirator operated in the continuous-flow or pressure-demand mode.
  (j) Protective work clothing and equipment -
   (1) Provision and use. Where employees are subject to dermal exposure to MDA, where liquids containing MDA can be splashed into the eyes, or where airborne concentrations of MDA are in excess of the PEL, the employer shall provide, at no cost to the employee, and ensure that the employee uses, appropriate protective work clothing and equipment which prevent contact with MDA such as, but not limited to:
     (i) Aprons, coveralls or other full-body work clothing;
     (ii) Gloves, head coverings, and foot coverings; and
     (iii) Face shields, chemical goggles; or
     (iv) Other appropriate protective equipment which comply with 29 CFR 1910.133.
   (2) Removal and storage.
     (i) The employer shall ensure that, at the end of their work shift, employees remove MDA-contaminated protective work clothing and equipment that is not routinely removed throughout the day in change areas provided in accordance with the provisions in paragraph (k) of this section.
     (ii) The employer shall ensure that, during their work shift, employees remove all other MDA-contaminated protective work clothing or equipment before leaving a regulated area.
     (iii) The employer shall ensure that no employee takes MDA-contaminated work clothing or equipment out of the decontamination areas, except those employees authorized to do so for the purpose of laundering, maintenance, or disposal.
     (iv) MDA-contaminated work clothing or equipment shall be placed and stored and transported in sealed, impermeable bags, or other closed impermeable containers.
     (v) Containers of MDA-contaminated protective work clothing or equipment which are to be taken out of decontamination areas or the workplace for cleaning, maintenance, or disposal, shall bear labels warning of the hazards of MDA.
   (3) Cleaning and replacement.
     (i) The employer shall provide the employee with clean protective clothing and equipment. The employer shall ensure that protective work clothing or equipment required by this paragraph is cleaned, laundered, repaired, or replaced at intervals appropriate to maintain its effectiveness.
     (ii) The employer shall prohibit the removal of MDA from protective work clothing or equipment by blowing, shaking, or any methods which allow MDA to re-enter the workplace.
     (iii) The employer shall ensure that laundering of MDA-contaminated clothing shall be done so as to prevent the release of MDA in the workplace.
     (iv) Any employer who gives MDA-contaminated clothing to another person for laundering shall inform such person of the requirement to prevent the release of MDA.
     (v) The employer shall inform any person who launders or cleans protective clothing or equipment contaminated with MDA of the potentially harmful effects of exposure.
   (4) Visual Examination.
     (i) The employer shall ensure that employees' work clothing is examined periodically for rips or tears that may occur during performance of work.
     (ii) When rips or tears are detected, the protective equipment or clothing shall be repaired and replaced immediately.
  (k) Hygiene facilities and practices -
   (1) General.
     (i) The employer shall provide decontamination areas for employees required to work in regulated areas or required by paragraph (j)(1) of this section to wear protective clothing. Exception: In lieu of the decontamination area requirement specified in paragraph (k)(1)(i) of this section, the employer may permit employees engaged in small scale, short duration operations, to clean their protective clothing or dispose of the protective clothing before such employees leave the area where the work was performed.
     (ii) Change areas. The employer shall ensure that change areas are equipped with separate storage facilities for protective clothing and street clothing, in accordance with 29 CFR 1910.141(e).
     (iii) Equipment area. The equipment area shall be supplied with impermeable, labeled bags and containers for the containment and disposal of contaminated protective clothing and equipment.
   (2) Shower area.
     (i) Where feasible, shower facilities shall be provided which comply with 29 CFR 1910.141(d)(3) wherever the possibility of employee exposure to airborne levels of MDA in excess of the permissible exposure limit exists.
     (ii) Where dermal exposure to MDA occurs, the employer shall ensure that materials spilled or deposited on the skin are removed as soon as possible by methods which do not facilitate the dermal absorption of MDA.
   (3) Lunch Areas.
     (i) Whenever food or beverages are consumed at the worksite and employees are exposed to MDA the employer shall provide clean lunch areas were MDA levels are below the action level and where no dermal exposure to MDA can occur.
     (ii) The employer shall ensure that employees wash their hands and faces with soap and water prior to eating, drinking, smoking, or applying cosmetics.
     (iii) The employer shall ensure that employees do not enter lunch facilities with contaminated protective work clothing or equipment.
  (l) Communication of hazards to employees -
   (1) Hazard communication. The employer shall include Methylenedianiline (MDA) in the program established to comply with the Hazard Communication Standard (HCS) (§ 1910.1200). The employer shall ensure that each employee has access to labels on containers of MDA and safety data sheets, and is trained in accordance with the provisions of HCS and paragraph (l)(3) of this section. The employer shall ensure that at least the following hazards are addressed: Cancer; liver effects; and skin sensitization.
   (2) Signs and labels -
     (i) Signs.
      (A) The employer shall post and maintain legible signs demarcating regulated areas and entrances or access-ways to regulated areas that bear the following legend:
DANGER
MDA
MAY CAUSE CANCER
CAUSES DAMAGE TO THE LIVER
RESPIRATORY PROTECTION AND PROTECTIVE CLOTHING MAY BE REQUIRED IN THIS AREA
AUTHORIZED PERSONNEL ONLY
      (B) Prior to June 1, 2016, employers may use the following legend in lieu of that specified in paragraph (l)(2)(i)(A) of this section:
DANGER
MDA
MAY CAUSE CANCER
LIVER TOXIN
AUTHORIZED PERSONNEL ONLY
RESPIRATORS AND PROTECTIVE CLOTHING MAY BE REQUIRED TO BE WORN IN THIS AREA
     (ii) Labels.
      (A) The employer shall ensure that labels or other appropriate forms of warning are provided for containers of MDA within the workplace. The labels shall comply with the requirements of § 1910.1200(f) and shall include at least the following information for pure MDA and mixtures containing MDA:
DANGER
CONTAINS MDA
MAY CAUSE CANCER
CAUSES DAMAGE TO THE LIVER
      (B) Prior to June 1, 2015, employers may include the following information workplace labels in lieu of the labeling requirements in paragraph (l)(2)(ii)(A) of this section:
        (1) For Pure MDA:
DANGER
CONTAINS MDA
MAY CAUSE CANCER
LIVER TOXIN
        (2) For mixtures containing MDA:
DANGER
CONTAINS MDA
CONTAINS MATERIALS WHICH MAY CAUSE CANCER
LIVER TOXIN
   (3) Information and training.
     (i) The employer shall provide employees with information and training on MDA, in accordance with 29 CFR 1910.1200(h), at the time of initial assignment and at least annually thereafter.
     (ii) In addition to the information required under 29 CFR 1910.1200, the employer shall:
      (A) Provide an explanation of the contents of this section, including appendices A and B of this section, and indicate to employees where a copy of the standard is available;
      (B) Describe the medical surveillance program required under paragraph (n) of this section, and explain the information contained in appendix C of this section; and
      (C) Describe the medical removal provision required under paragraph (n) of this section.
   (4) Access to training materials.
     (i) The employer shall make readily available to all affected employees, without cost, all written materials relating to the employee training program, including a copy of this regulation.
     (ii) The employer shall provide to the Assistant Secretary and the Director, upon request, all information and training materials relating to the employee information and training program.
  (m) Housekeeping.
   (1) All surfaces shall be maintained as free as practicable of visible accumulations of MDA.
   (2) The employer shall institute a program for detecting MDA leaks, spills, and discharges, including regular visual inspections of operations involving liquid or solid MDA.
   (3) All leaks shall be repaired and liquid or dust spills cleaned up promptly.
   (4) Surfaces contaminated with MDA may not be cleaned by the use of compressed air.
   (5) Shoveling, dry sweeping, and other methods of dry clean-up of MDA may be used where HEPA filtered vacuuming and/or wet cleaning are not feasible or practical.
   (6) Waste, scrap, debris, bags, containers, equipment, and clothing contaminated with MDA shall be collected and disposed of in a manner to prevent the re-entry of MDA into the workplace.
  (n) Medical surveillance -
   (1) General.
     (i) The employer shall make available a medical surveillance program for employees exposed to MDA under the following circumstances:
      (A) Employees exposed at or above the action level for 30 or more days per year;
      (B) Employees who are subject to dermal exposure to MDA for 15 or more days per year;
      (C) Employees who have been exposed in an emergency situation;
      (D) Employees whom the employer, based on results from compliance with paragraph (f)(8) of this section, has reason to believe are being dermally exposed; and
      (E) Employees who show signs or symptoms of MDA exposure.
     (ii) The employer shall ensure that all medical examinations and procedures are performed by or under the supervision of a licensed physician at a reasonable time and place, and provided without cost to the employee.
   (2) Initial examinations.
     (i) Within 150 days of the effective date of this standard, or before the time of initial assignment, the employer shall provide each employee covered by paragraph (n)(1)(i) of this section with a medical examination including the following elements:
      (A) A detailed history which includes:
        (1) Past work exposure to MDA or any other toxic substances;
        (2) A history of drugs, alcohol, tobacco, and medication routinely taken (duration and quantity); and
        (3) A history of dermatitis, chemical skin sensitization, or previous hepatic disease.
      (B) A physical examination which includes all routine physical examination parameters, skin examination, and examination for signs of liver disease.
      (C) Laboratory tests including:
        (1) Liver function tests and
        (2) Urinalysis.
      (D) Additional tests as necessary in the opinion of the physician.
     (ii) No initial medical examination is required if adequate records show that the employee has been examined in accordance with the requirements of this section within the previous six months prior to the effective date of this standard or prior to the date of initial assignment.
   (3) Periodic examinations.
     (i) The employer shall provide each employee covered by this section with a medical examination at least annually following the initial examination. These periodic examinations shall include at least the following elements:
      (A) A brief history regarding any new exposure to potential liver toxins, changes in drug, tobacco, and alcohol intake, and the appearance of physical signs relating to the liver, and the skin;
      (B) The appropriate tests and examinations including liver function tests and skin examinations; and
      (C) Appropriate additional tests or examinations as deemed necessary by the physician.
     (ii) If in the physician's opinion the results of liver function tests indicate an abnormality, the employee shall be removed from further MDA exposure in accordance with paragraph (n)(9) of this section. Repeat liver function tests shall be conducted on advice of the physician.
   (4) Emergency examinations. If the employer determines that the employee has been exposed to a potentially hazardous amount of MDA in an emergency situation under paragraph (e) of this section, the employer shall provide medical examinations in accordance with paragraphs (n)(3) (i) and (ii) of this section. If the results of liver function testing indicate an abnormality, the employee shall be removed in accordance with paragraph (n)(9) of this section. Repeat liver function tests shall be conducted on the advice of the physician. If the results of the tests are normal, tests must be repeated two to three weeks from the initial testing. If the results of the second set of tests are normal and on the advice of the physician, no additional testing is required.
   (5) Additional examinations. Where the employee develops signs and symptoms associated with exposure to MDA, the employer shall provide the employee with an additional medical examination including liver function tests. Repeat liver function tests shall be conducted on the advice of the physician. If the results of the tests are normal, tests must be repeated two to three weeks from the initial testing. If the results of the second set of tests are normal and on the advice of the physician, no additional testing is required.
   (6) Multiple physician review mechanism.
     (i) If the employer selects the initial physician who conducts any medical examination or consultation provided to an employee under this section, and the employee has signs or symptoms of occupational exposure to MDA (which could include an abnormal liver function test), and the employee disagrees with the opinion of the examining physician, and this opinion could affect the employee's job status, the employee may designate an appropriate and mutually acceptable second physician:
      (A) To review any findings, determinations or recommendations of the initial physician; and
      (B) To conduct such examinations, consultations, and laboratory tests as the second physician deems necessary to facilitate this review.
     (ii) The employer shall promptly notify an employee of the right to seek a second medical opinion after each occasion that an initial physician conducts a medical examination or consultation pursuant to this section. The employer may condition its participation in, and payment for, the multiple physician review mechanism upon the employee doing the following within fifteen (15) days after receipt of the foregoing notification, or receipt of the initial physician's written opinion, whichever is later:
      (A) The employee informing the employer that he or she intends to seek a second medical opinion, and
      (B) The employee initiating steps to make an appointment with a second physician.
     (iii) If the findings, determinations, or recommendations of the second physician differ from those of the initial physician, then the employer and the employee shall assure that efforts are made for the two physicians to resolve any disagreement.
     (iv) If the two physicians have been unable to quickly resolve their disagreement, then the employer and the employee through their respective physicians shall designate a third physician:
      (A) To review any findings, determinations, or recommendations of the prior physicians; and
      (B) To conduct such examinations, consultations, laboratory tests, and discussions with the prior physicians as the third physician deems necessary to resolve the disagreement of the prior physicians.
     (v) The employer shall act consistent with the findings, determinations, and recommendations of the second physician, unless the employer and the employee reach a mutually acceptable agreement.
   (7) Information provided to the examining physician.