August 9, 1993

Mr. Richard J. Mannix
Crowell & Moring
1001 Pennsylvania Avenue, N.W.
Washington, D.C. 20004-2595

Dear Mr. Mannix:

Thank you for your letter of April 5, regarding the Occupational Safety and Health Administration's (OSHA) Formaldehyde Standard. Please excuse our delay in responding to your concerns.

In your letter you inquired about the apparent conflict between the labeling requirements contained in OSHA's Formaldehyde Standard (29 CFR 1910.1048(m)) and the labeling requirements under the EPA's Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). OSHA agrees that the labeling requirements specified in the Formaldehyde Standard are preempted where formaldehyde is used as a registered pesticide. In such case the product must be labelled in accordance with FIFRA requirements.

OSHA's jurisdiction over formaldehyde and pesticide exposure is limited in two ways as a consequence of FIFRA. First, as stated above OSHA jurisdiction over registered pesticide products containing and emitting formaldehyde is preempted by EPA's labeling regulations. Second, pesticide applicators and employees under their direct supervision are exempt from the requirements of the OSHA Formaldehyde Standard. Under FIFRA, EPA has exercised its statutory authority to regulate pesticide exposure of certified applicators and of those employees under the direct supervision of a certified applicator. As you know, Section 4(b)(1) of the OSH Act states that: "Nothing in this Act shall apply to working conditions of employees with respect to which other Federal agencies... exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health." Therefore, for FIFRA-regulated activities the Formaldehyde Standard would be preempted by FIFRA.

If you should have further questions please contact the Office of Health Compliance Assistance at (202) 219-8036.

Sincerely,



Roger A. Clark, Director
Directorate of Compliance Programs



April 5, 1993

Mr. Roger A. Clark, Director
Directorate of Compliance Programs
Occupational Health and
Safety Administration
Room 3469,
Francis Perkins Building
200 Constitution Avenue, N.W.
Washington, D.C. 20210

Dear Mr. Clark:

We represent the manufacturers of certain pesticide products which are regulated by the U.S. Environmental Protection Agency ("EPA") pursuant to the Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA"), 7 U.S.C. 136-136y (1988). We are writing to request clarification of the OSHA standard for occupational exposure to formaldehyde as it may apply to products which are FIFRA-regulated pesticides. Specifically, we request that OSHA confirm in writing our own understanding, based on discussions with OSHA staff, that FIFRA-regulated pesticides are exempt from the labeling requirements of OSHA's hazard communication standard for formaldehyde,29 CFR 1910.1048(m).

EPA and OSHA share somewhat overlapping authority under FIFRA and the Occupational Safety and Health Act ("OSH Act"), 29 U.S.C. 651-678 (1988) to ensure the safety and health of the public and of the nation's workforce against any possible pesticide hazards. On the one hand, FIFRA comprehensively regulates all pesticides sold anywhere in the United States, even those available entirely in intrastate commerce. FIFRA directs EPA to register a pesticide product for sale and distribution in the U.S. only if it meets comprehensive requirements for the protection of public health and welfare and for product labeling. Label language is the principle mechanism by which EPA requires users of pesticide products to conform to the terms and conditions of registration. Section 12(a)(2)(A) of FIFRA provides that it is "unlawful for any person to detach, alter, deface, or destroy, in whole or in part, any labeling required under this Act." 7 U.S.C. s 136j(a)(2)(A). It is also "unlawful for any person to use any registered pesticide in a manner inconsistent with its labeling." 7 U.S.C. 136j(a)(2)(G).

The OSH Act, on the other hand, gives OSHA jurisdiction over health and safety in the workplace. An important part of the regulations promulgated to carry out this responsibility is the OSHA Hazard Communication Standard, which uses product labeling and other mechanisms to provide workers with information on hazardous chemicals that are present in the workplace. Employers and chemical manufacturers are required to ensure that hazardous chemicals are labeled with certain specified information including an appropriate hazard warning.

Comprehensive hazard communication requirements are provided in OSHA's generic Hazard Communication Standard which is codified at 29 CFR 1910.1200 (1992). This standard applies to any chemical which is a physical or health hazard and which is known to be present in the workplace. However, it exempts from the OSHA labeling requirements "[a]ny pesticide as such term is defined in [FIFRA], when subject to the labeling requirements of that Act and labeling regulations issued under that Act by the [EPA]." Id. 1910.1200(b)(5)(i).

OSHA has also promulgated other, more specific hazard communication requirements which are intended to supplement the requirements of the generic Standard in order to accommodate the unique properties of certain special chemicals. Ethylene oxide is one of those special chemicals; formaldehyde is another.

As with the generic Standard, the hazard communication standard for ethylene oxide, codified at 29 CFR 1910.1047(j), also contains an explicit exemption from OSHA labeling requirements for FIFRA-regulated products. Id. 1910.1047(j) (1)(iii). However, unlike the generic Standard and unlike the ethylene oxide standard, the formaldehyde standard, which is codified at 29 CFR S 1910.1047(m), contains no explicit exception from OSHA labeling requirements for FIFRA-registered products. It is our understanding that such an exemption would nevertheless apply for the following reasons⁽¹⁾:

a. Any employer who changed any label registered with EPA in an attempt to comply with separate OSHA's labeling requirements would be in violation of Section 12(a)(2)(A) of FIFRA which states that it is "unlawful for any person to detach, alter, deface, or destroy, in whole or in part, any labeling required under [FIFRA]." 7 U.S.C. 136j(a)(2)(A).

b. Section 4(b)(1) of the OSH Act provides that "[n]othing in this Act shall apply to working conditions of employees with respect to which other Federal agencies,... exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health." 29 USC 653(b)(1). EPA labeling requirements under FIFRA are clearly an exercise of statutory authority over occupational health and would therefore preempt the OSHA label for those conditions.

c. Duplicative and conflicting regulation by agencies with overlapping statutory mandates ought to be avoided wherever possible. The labeling requirements imposed by EPA under FIFRA are not limited to the workplace, but extend to all' pesticide uses. The potential for conflict and confusion can be avoided through uniform OSHA acceptance of the FIFRA label so that manufacturers of pesticides need not place different safety and health labels on their products depending on where and by whom they are to be used.

d. Deferring to the FIFRA label does not sacrifice worker protection, since the FIFRA and OSHA labeling objectives are the same, and all other provisions of the OSHA standard, including material safety data sheets and employee information and training, would continue to apply.

Thus, we interpret the regulations and their statutory foundations as compelling the conclusion that FIFRA-regulated pesticides which contain or emit formaldehyde are exempt from the labeling requirements of the formaldehyde standard. Please verify that this interpretation comports with OSHA's view of the hazard communication labeling requirements as they apply to products which contain or emit formaldehyde. We would appreciate it if you would act on this request at the earliest possible time to prevent continued uncertainty in the industry over the formaldehyde standard.

If you need additional information in order to respond, please call me at (202) 624-2958. Thank you for your attention to this matter.

Sincerely,



Richard J. Mannix

Footnote (1) These reasons were discussed by OSHA at the time that OSHA amended the labeling requirements of the ethylene oxide standard to exempt FIFRA-registered products, 50 Fed. Reg. 41491 (Oct. 11, 1985). (Back to Text)