September 11, 2015

Dr. Susan Ferenc, DVM, Ph.D.
Council of Producers & Distributors of Agrotechnology
1730 Rhode Island Ave., Suite 812
Washington, DC 20036

Dear Dr. Ferenc:

This is in response to your letter and follow-up meeting with the Occupational Safety and Health Administration (OSHA) regarding the Council of Producers & Distributors of Agrotechnology's (CPDA) request to resolve labeling concerns with the revised Hazard Communication Standard (HCS), 29 CFR 1910.1200. Your letter was forwarded to the Directorate of Enforcement Programs for a response. You requested clarification on the December 1, 2015, effective date for container labeling of non-pesticide agrichemical products shipped from the manufacturer/importer or returned through the distribution system. Specifically, you state that compliance with the extended labeling deadline for distributors of agricultural chemical products is incompatible with market distribution and consumption practices, and is infeasible.

We appreciate your voicing concerns regarding the Hazard Communication standard on behalf of your members. The Agency is mindful of the complexity and scale of the changes required of manufacturers, importers and distributors during this transition period. After a summary of the background you provided, your paraphrased question and our reply are below.

Background: Non-pesticide agricultural chemicals (e.g., tank-mix adjuvants and plant nutritional products) are shipped from U.S. manufacturers and formulators to U.S. distributors and others. Under long-standing commercial arrangements, customers are permitted to return unused product to the distributor (not the manufacturer) sometimes 4-5 years after purchase. After confirming the integrity of the returned product, the distributor then may ship the returned product to other customers. The manner in which these products are distributed, returned to the distributor, and redistributed results in the products remaining in commerce for years and certainly beyond the December 1, 2015, effective date. The U.S. Environmental Protection Agency (EPA) allows agricultural chemicals regulated under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) to follow labeling requirements by the "released for shipment"¹ approach as triggered under the EPA's modified container and containment (C&C) rule. In addition, the CPDA is concerned about the increased workplace hazards and risks involved for workers that would dismantle pallets by hand, repackage, and re-label existing product containers.

Question: Will OSHA allow containers "leaving the workplace," which require labeling as per § 1910.1200(f)(1), to mean "released for shipment" as is used by the EPA's C&C rule?

Response: On February 9, 2015, OSHA had issued an interim enforcement memorandum which explained that in situations where a manufacturer or importer cannot comply with the June 1, 2015 effective date despite its reasonable diligence and good faith efforts, and a distributor is consequently unable to comply with the December 1, 2015 effective date, enforcement discretion would allow for limited continued use of HCS 1994-compliant MSDSs and labels provided that the distributor also exercised reasonable diligence and made good faith efforts to comply. Because of additional questions and requests for further clarification on the labels for existing stock, on May 29 2015, OSHA issued further interim guidance to address the limited continued use of HCS 1994-compliant labels.

The May 29th memorandum had stated, in part, distributors with existing stock that are packaged (e.g., boxed, palletized, shrink-wrapped, etc.) for shipment and are HCS 1994-compliant labeled before December 1, 2015, may continue to ship those containers downstream. In these instances, there is no requirement to re-label packaged for shipment containers with HCS 2012-compliant labels. Distributors must provide a HCS 2012-compliant label for each and every individual container shipped and the appropriate HCS 2012-compliant SDS(s) with any future shipments after December 1, 2015 or upon request, unless they can demonstrate reasonable diligence and good faith as discussed in the earlier February 9th memorandum. Additionally, 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.

OSHA reviewed the EPA's "release for shipment" definition under their C&C rule and found that the February 9th and May 29th memoranda were closely aligned with it. Thank you for making us aware of the long-standing commercial arrangements for unused packages of agriculture chemicals to be returned to a distributor 4-5 years after purchase. However, the Agency believes that the Hazard Communication standard as currently designed, including the use of an HCS 2012-compliant label, is necessary for the long-term safety of downstream consumers.

OSHA has received a request to further clarify its HCS 2012 labeling requirements for manufacturers and importers in regards to the situations previously outlined in the February 9th and May 29th memoranda especially asking whether there is an end-date when all containers must be HCS 2012-compliant labeled. Consequently, OSHA now provides that, regardless of the date that a container was packaged for shipment, all containers shipped by the manufacturer or importer after June 1, 2017, and all containers in the control of a distributor after December 1, 2017, must be HCS 2012-compliant labeled prior to shipping.

As you are aware, on July 20, 2015, OSHA issued the revised Inspection Procedures for the Hazard Communication Standard (HCS 2012) directive, CPL 02-02-079 (copy enclosed). The revised directive incorporated the guidance from both the February 9, 2015 and May 29, 2015 enforcement memoranda. The revised HCS 2012 directive can be found at [https://www.osha.gov/enforcement/directives/cpl-02-02-079].

In regards to the re-labeling of existing stock with HCS 2012-compliant labels where feasible, the employer should conduct a thorough hazard assessment, as required by 29 CFR 1910.132(d), to identify any potential hazard(s) (e.g., hand injury to workers from removing labels and relabeling), and then provide the type(s) of personal protective equipment that will protect workers from the hazard(s) identified (e.g., hand protection). The hazards associated with manual lifting can be lessened by developing and instituting an ergonomic lifting program. OSHA suggests that the CPDA reviews and shares with their members an ergonomic publication from the National Institute for Occupational Safety and Health (NIOSH) titled Ergonomic Solutions for Retailers. The link to the document is https://www.cdc.gov/niosh/updates/upd-11-25-14.html. 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 appreciate CPDA's time to come in and meet with us to discuss the industry's concerns, and 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 https://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

¹ 40 CFR § 152.3. "...a product becomes released for shipment when the producer has packaged and labeled it in a manner in which it will be distributed or sold, or has stored it in an area where finished products are ordinarily held for shipment..."

[Correction 10/21/2021]