September 1, 2015

Mr. Lawrence P. Halprin
Keller and Heckman LLP
1001 G Street, N.W., Suite 500 West
Washington, D.C. 20001

Dear Mr. Halprin,

This is in response to your letter to the Occupational Safety and Health Administration (OSHA) requesting an interpretation of OSHA's Hazard Communication standard (HCS 2012), 29 CFR 1910.1200, on behalf of a large manufacturer. Your letter was forwarded to the Directorate of Enforcement Programs for a response. In your letter you requested that OSHA withdraw its February 9, 2015 memorandum titled, Enforcement Guidance for the Hazard Communication Standard's (HCS) June 1, 2015 Effective Date, and modify and reissue it to be consistent with the points made in your letter. Specifically, you requested that OSHA adopt a "released for shipment" approach with respect to container labeling, and that the labeling be deemed compliant for the life of the product in that container.

The Agency understands the complexity and scale of the changes required of manufacturers and importers during this transition period. However, the Agency believes that the standard as currently written is necessary for the long-term safety of downstream users. Because of questions and requests for further clarification by manufacturers, importers, and distributors, OSHA issued an additional memorandum to field staff, titled, Interim Enforcement Guidance for Hazard Communication 2012 (HCS 2012) June 1, 2015 Effective Date, dated May 29, 2015, to address the limited continued use of HCS 1994-compliant labels on shipped containers. Following the issuance of the aforementioned interim policy, you requested that OSHA provide additional clarification in our response to your original request for interpretation. Below is a brief summary of the background you provided, followed by your paraphrased questions and our responses.

Background: Your client manufactures and distributes gypsum plaster products. In a typical year, the company sells over 250,000 tons of gypsum plaster in 80 and 100-pound bags. The gypsum plaster products consist of approximately 75 intermediate formulations manufactured from 20 to 25 raw materials. An individual formulation can consist of up to 10 different raw materials.

Your client has requested HCS 2012-compliant safety data sheets (SDSs) from suppliers and did not receive any as of March 25, 2015. Because the gypsum plaster product market is highly seasonal, your client built a substantial inventory before June 1, 2015. The need to meet customer demand prevents your client from timing production so that inventory with HCS 1994-compliant labels can be exhausted.

The 80 and 100-pound bags of gypsum plaster are filled, sealed, palletized and shrink-wrapped with 40 or 50 bags per pallet. You stated that from an ergonomics standpoint, the effort involved in manually removing 40 to 50 bags to re-label and re-palletize them would be substantial. In addition, you raised concern that the risk of harmful exposure to the plaster or material handling hazards would be greater.

Question 1: Will OSHA take a "released for shipment" approach with respect to labeling containers of hazardous chemicals with HCS 2012-compliant labels?

Response: The HCS 2012 gave manufacturers and importers of hazardous chemicals (including businesses that repackage) until June 1, 2015 to label shipped containers with HCS 2012-compliant labels. See 29 CFR § 1910.1200(j)(2). As you are aware, OSHA is using its enforcement discretion to allow manufacturers or importers with existing stock packaged (e.g., boxed, palletized, shrink-wrapped, etc.) for shipment prior to June 1, 2015, to continue to ship those containers downstream provided that the containers are HCS 1994-compliant labeled. In these limited instances, there is no requirement to re-label containers that have already been packaged for shipment with HCS 1994-compliant labels. However, the manufacturer or importer must provide HCS 2012-compliant labels for each and every individual container and the appropriate HCS 2012-compliant SDS(s) with each shipment.

Any hazardous chemical container that is packaged for shipment after June 1, 2015 must have an HCS 2012-compliant label on it prior to shipping. However, if after June 1, 2015, the manufacturer or importer can demonstrate that it exercised reasonable diligence and good faith efforts to obtain hazard classification information from upstream suppliers but for circumstances beyond their control they received the necessary information to develop HCS 2012-compliant SDSs and labels later than June 1, 2015, they may continue to ship containers downstream provided the containers are HCS 1994-compliant labeled. The standard requires an HCS 1994-compliant MSDS or HCS 2012-compliant SDS be provided as appropriate to downstream users with each shipment.

Eventhough a manufacturer or importer may have built up a substantial inventory, overtime, containers of hazardous chemicals that were packaged for shipment prior to June 1, 2015 should become less of a labeling burden to manufacturers and importers as inventory is depleted. Therefore, all containers of hazardous chemicals shipped by a manufacturer or importer must be HCS-2012 compliant labeled by June 1, 2017.

With regard to distributors, the HCS 2012 permits distributors to continue to ship chemicals with HCS 1994 labels until December 1, 2015. See 29 C.F.R. § 1910.1200(j)(2)(i). We are mindful that due to potential delays in compliance on the part of manufacturers and importers, some distributors may have difficulty depleting their existing stock of HCS 1994-labeled hazardous chemicals by the December 1, 2015 deadline. Again, using OSHA's enforcement discretion, after December 1, 2015, distributors may ship existing stock packaged (e.g., boxed, palletized, shrink-wrapped, etc.) for shipment if the immediate container label is HCS 1994-compliant. As described in the case with manufacturers and importers, in these limited instances, there is no requirement to re-label containers that have already been packaged for shipment with HCS 1994-compliant labels. Distributors must, however, provide a HCS 2012-compliant label for each and every individual container shipped and the appropriate HCS 2012-compliant SDS(s) after December 1, 2015 or upon request unless they can demonstrate reasonable diligence and good faith efforts that they have not received HCS 2012-compliant labels and SDSs from the manufacturer or importer. The OSHA clarification in the compliance directive offers an additional two-year period, i.e., until December 1, 2017, for distributors to ship products with HCS 1994 labels. Distributors must provide HCS 2012-compliant SDSs to downstream users with the first shipment after a new or revised SDS is provided by the manufacturer or importer.

Question 2: Will OSHA allow containers packaged for shipment prior to June 1, 2015 and HCS 1994 labeled to be deemed compliant for the life of the product in the container?

Response: Although your recent correspondences and discussions suggest a different approach to determining the length of the labeling accommodation for manufacturers, importers and distributors, OSHA believes the above offered timeframes is a reasonable accommodation to the requirements in paragraphs (j)(2) and (j)(2)(i) to comply by June 1, 2015 and December 1, 2015, respectively. OSHA believes that this amount of time is reasonable, and that most manufacturers, importers, and distributors will be able to avoid relabeling chemicals that were packaged for shipment before June 1, 2015.

Question 3: Must the manufacturer or importer that is shipping existing stock packaged (e.g., boxed, palletized, shrink-wrapped, etc.) prior to June 1, 2015 with HCS 1994-compliant labels and MSDSs provide HCS 2012-compliant labels and SDSs for each individual container of hazardous chemicals shipped downstream?

Response: The manufacturer or importer must provide a label for each and every individual container, but only one HCS 2012-compliant SDS per hazardous chemical.

Question 4: After December 1, 2017, can distributors continue to ship existing stock packaged (e.g., boxed, palletized, shrink-wrapped, etc.) prior to June 1, 2015 that is HCS 1994-compliant labeled?

Response: Per CPL 02-02-079, the Agency has offered relief by exercising enforcement discretion that permits distributers to continue shipping existing stock until December 1, 2017. In order to fulfill the purpose of HCS 2012 to provide adequate and consistent information to employers and employees who use hazardous chemicals, manufacturers, importers, and distributors must fully comply with the new labeling and SDS requirements.

To address your concerns regarding re-labeling existing stock with HCS 2012-compliant labels where feasible, any potential hazards (e.g., hand injury to workers from removing labels and relabeling) could be mitigated by conducting a thorough hazard assessment, as required by 29 CFR 1910.132(d), and then providing the type(s) of personal protective equipment that will protect workers from the hazards identified (e.g., hand protection). The hazards, as you described, that are associated with manual lifting can be lessened by developing and instituting an ergonomic lifting program. The National Institute for Occupational Safety and Health (NIOSH) published a document titled Ergonomic Solutions for Retailers. This NIOSH publication focuses on the grocery sector, but the easy-to-read format can be adapted to other scenarios, including for those working in warehousing and storage facilities.

Thank you for your interest in occupational safety and health. We hope you and your client 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