July 28, 2015

Ms. Martha Jolkovski
Acting Executive Director
Independent Lubricant Manufacturers Association
400 N. Columbus Street, Suite 201
Alexandria, Virginia 22314

Dear Ms. Jolkovski,

Thank you for your March 18, 2015, letter to the Occupational Safety and Health Administration (OSHA). Your letter was forwarded to the Directorate of Enforcement Programs for a response. You requested clarification of the February 9, 2015, enforcement guidance memorandum in regards to end-users that have not received Hazard Communication Standard (HCS) 2012-compliant labels and safety data sheets on shipped containers of hazardous chemicals from the upstream manufacturer, importer or distributor. This letter constitutes OSHA's interpretation only of the requirements herein, and may not be applicable to any questions not delineated within your original correspondence.

Background: End-user employers are dependent on upstream manufacturers, importers or distributors to provide shipped products of hazardous chemicals with HCS 2012-compliant labels and/or safety data sheets (SDSs). The February 9, 2015 enforcement guidance provides, in brief, that manufacturers, importers or distributors that have exercised "reasonable diligence" and "good faith efforts" in attempting to comply with the June 1, 2015 or December 1, 2015 effective date, respectively, may still provide shipped products with HCS 1994-compliant labels and (Material)SDSs under certain circumstances. End-user employers are concerned about maintaining compliance with the new standard.

Question: Will end-user employers be held responsible for having received shipped products of hazardous chemicals without HCS 2012-compliant labels and SDSs after the June 1, 2015 or December 1, 2015 effective dates, respectively?

Response: On July 20, 2015, OSHA issued the revised Hazard Communication 2012 directive, CPL 02-02-079 (copy enclosed). The revised directive incorporated the February 9, 2015 enforcement memorandum which provided guidance on the limited continued use of HCS 1994-compliant labels and MSDSs by manufacturers, importers, and distributors under certain circumstances for chemicals that were packaged for shipment prior to June 1, 2015. Subsequently, the end user could also be affected by this additional guidance. The revised HCS 2012 directive titled Inspection Procedures for the Hazard Communication Standard (HCS 2012) can be found at http://www.osha.gov/OshDoc/Directive_pdf/CPL_02-02-079.pdf*.

As is provided in the revised directive, where the end-user has not received HCS 2012-compliant labels and SDSs from the upstream manufacturer, importer or distributor by the June 1, 2015 or December 1, 2015 effective dates, respectively, the end-user must continue to maintain HCS 1994-compliant labels and MSDSs on their containers of hazardous chemicals. Employers must maintain the most recently-received version of the MSDS. When an end-user receives an HCS 2012-compliant SDS, they must replace the old MSDS for the corresponding hazardous chemical. Different manufacturers, importers and distributors may issue SDSs at different times. An employer who is maintaining an MSDS for a product not received recently, even after June 1, 2015, would be considered to be compliant with HCS 2012, unless the manufacturer, importer or distributor has provided an SDS and the employer did not maintain the new SDS. Employers may contact manufacturers or distributors of products they have ordered previously to request new SDSs, and under section 1910.1200(g)(6)(iv), the SDSs must be provided. However, the HCS 2012 does not require employers to contact the manufacturers, importers, or distributors for SDSs for products they have not received recently.

End-users are required by 29 CFR 1910.1200(f)(6) to ensure that containers of hazardous chemicals in their workplaces are labeled. For workplace containers that have already been received from the upstream supplier, simply maintaining the label received from the supplier is the best and easiest option as long as the label complies with HCS 1994. However, the standard is flexible, and employers may re-label these containers with HCS 2012-compliant labels, if received, or label other containers used in the workplace with workplace labels in accordance with §1910.1200(f)(6), as long as workers have immediate access to the specific information about the physical and health hazards of the chemical.

Thank you for your interest in occupational safety and health. We hope you find this information helpful. OSHA's requirements are set by statute, standards, and regulations. Our letters of interpretation do not create new or additional requirements but rather explain these requirements and how they apply to particular circumstances. This letter constitutes OSHA's interpretation of the requirements discussed. From time to time, letters are affected when the Agency updates a standard, a legal decision impacts a standard, or changes in technology affect the interpretation. To assure that you are using the correct information and guidance, please consult OSHA's website at http://www.osha.gov. If you have further questions, please feel free to contact the Office of Health Enforcement at (202) 693-2190.

Sincerely,

Thomas Galassi, Director
Directorate of Enforcement Programs

Enclosure

*Accessibility Assistance: Contact the OSHA Directorate of Enforcement Programs at (202) 693-2129 for assistance accessing PDF materials.