August 22, 2016

Mr. James Burke
USA Refrigerants
P.O. Box 289
Old Bridge, New Jersey 08857

Dear Mr. Burke:

This is in response to your letter to the Occupational Safety and Health Administration (OSHA). Your letter has been referred to the Directorate of Enforcement Programs for an answer to your specific questions regarding the labeling requirements of OSHA’s Hazard Communication Standard (HCS 2012), 29 CFR 1910.1200. A member of my staff contacted you by phone to clarify your questions. 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. Your questions have been paraphrased below followed by our response.

Scenario: USA Refrigerants is a distributor purchasing cases or pallets of individually packaged, 12-ounce containers and 25-30 pound cylinders of refrigerants from manufacturers and other distributors. These cases or pallets are then either shipped directly to downstream customers or transported by common carrier to public warehouses awaiting future shipment to customers. For example, you purchase recovery cylinders, pay freight expenses to transport these recovery cylinders to a contracted U.S. EPA certified refrigerant reclaimer for refill, and then provide these containers for resale in a “buy back” refrigerant program. Further, you also purchase newly manufactured cylinders from U.S. EPA certified reclaimers and aftermarket demand retail cylinders from public auctions. All business transactions, e.g., off-site purchasing, payment of monthly warehouse rental fees, transport and handling fees (freight bills, etc.,) and permission for dock release of stock, occurs remotely and you never take physical custody of these products inside your establishment to permit visual inspection of the shipping containers.

You stated that it would be costly to transport staff to the warehouses to verify compliance with HCS 2012 labeling. Further, you expressed concerns about a substantial amount of built-up inventory that may potentially have non-complaint labeling, which conflicts with the new provisions of the final rule, effective on June 1, 2015, for manufacturers and importers to ensure shipped containers are labeled in accordance with 29 CFR 1910.1200(f)(1)(i)-(vi).

Question 1: What are the HCS 2012 label requirements for distributors prior to shipping individually packaged containers of hazardous chemicals (in bulk) to downstream users?

Response: OSHA’s Hazard Communication Standard requires manufacturers, importers and distributors to ensure that each shipped container leaving the workplace is labeled, tagged, or marked in accordance with paragraphs 29 CFR 1910.1200(f)(1)(i)-(vi). The HCS 2012 permitted distributors to ship containers of hazardous chemicals with HCS 1994-compliant labels until December 1, 2015. See 29 CFR § 1910.1200(j)(2)(i). The effective date for manufacturers or importers to comply with the new SDS and labeling requirements was June 1, 2015. Because OSHA learned that despite making reasonably diligent and good faith efforts to meet that compliance date, certain manufacturers (and importers) faced unexpected delays in obtaining classification and SDS information from upstream suppliers and were unable to fully comply, the Agency issued enforcement guidance on how it would act in these limited circumstances. See OSHA’s Compliance Directive CPL 02-02-079.¹  We are also aware that unexpected delays from manufacturers and importers may also have residual effects on distributors and others downstream.

The Directive advises that through use of OSHA’s enforcement discretion, distributors with existing stock that was packaged (e.g., boxed, palletized, shrink-wrapped, etc.) for shipment prior to December 1, 2015, with HCS 1994-compliant labels may continue to ship those containers downstream. In these limited instances, there is no requirement to re-label those packaged-for-shipment containers with HCS 2012-compliant labels. Distributors must, however, provide an HCS 2012-compliant label for each and every individual container shipped and the appropriate HCS 2012-compliant SDS(s) with any future shipments packaged after December 1, 2015, and distributors must provide such information upon request, unless they can demonstrate that despite the exercise of reasonable diligence and good faith efforts they have not received the requisite information. All containers in the control of a distributor after December 1, 2017, must be HCS 2012-compliant labeled prior to shipping.  

Question 2: What are the HCS 2012 requirements for distributors of hazardous chemicals already in commerce and re-purchased by a distributor for resale?  These chemicals are typically packaged for shipment in boxes or pallets and may be shrink-wrapped. Must all shipping packages be removed to inspect each chemical label for compliance with HCS 2012?

Response:  See response to question 1 above. In addition, for work operations where employees only handle chemicals in sealed containers, which are not opened under normal conditions of use (such as in warehousing and retail sales), the distributor must follow paragraph 29 CFR 1910.1200(b)(4) which includes the requirement that labels on incoming containers of hazardous chemicals are not removed or defaced. See 29 CFR 1910.1200(b)(4)(i).

Question 3: Am I required to place a label on a case or shipping container of a manufacturer’s product and run the risk of compromising the U.S. Department of Transportation’s (DOT) and/or the U.S.  Environmental Protection Agency’s (EPA) package/container marking and labeling or container re-filling requirements, and instructions for release (venting) of liquids and gases?

Response:  OSHA requires an HCS label on the immediate container only. See 29 CFR § 1910.1200(c),(f)(1). During transportation, DOT’s regulations govern outer packaging labeling requirements. Unless the immediate container of the hazardous chemical is also the shipping container, an HCS label is not required on the shipping container.

When both DOT and HCS labels are required, the HCS specifically states that containers of hazardous chemicals leaving the workplace are to be labeled in such a way that does not conflict with the DOT requirements set forth in 49 CFR 172, Subpart E. 29 CFR § 1910.1200(f)(5). Additionally, OSHA allows supplemental information on the label as long as it does not contradict or cast doubt on the required information and it does not impede the identification of the required information. See Appendix C, C.3.1 and C.3.2 to the HCS 2012. Therefore, if DOT-required markings are on a container, OSHA would accept that information, in addition to the HCS 2012 label, as dual labeling.

In addition, any chemical substance or mixture as defined in the Toxic Substances Control Act (15 U.S.C. 2601 et seq.) when subject to the label requirements of that Act and labeling regulations issued under the Act by the EPA are exempt from HCS 2012 labeling requirements. 29 CFR 1910.1200(b)(5)(ii). We suggest that you contact the DOT and EPA directly with questions regarding their rules for labeling, liquid or gas venting instructions, or container re-filling activities that apply during the shipment of hazardous chemicals.

Question 4: Will the new HCS 2012 labeling requirements replace the use of placards at the worksite?

Response:  No. HCS 2012 provides employers with flexibility when labeling hazardous chemicals in the workplace. An employer can either provide all required information that is on the label from the chemical manufacturer, or the product identifier and words, pictures, symbols or a combination thereof, which in combination with other information immediately available to employees, provide specific information regarding the hazards of the chemicals. 29 CFR § 1910.1200(f)(6)(i) and (ii). OSHA permits the use of placards as part of a workplace labeling system, as long as the label also includes the product identifier and general information regarding all of the hazards of the chemical, which, in conjunction with the other information immediately available to employees, provides specific information on the chemical’s hazards.

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 explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA’s interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, 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 ensure that you are using the correct information and guidance, please consult OSHA’s website at https://www.osha.gov. If you have any further questions, please feel free to contact the Office of Health Enforcement at (202) 693-2190.

Sincerely,

Thomas Galassi, Director
Directorate of Enforcement Programs

¹ CPL 02-02-079, Inspection Procedures for the Hazard Communication Standard (HCS 2012), http://www.osha.gov/OshDoc/Directive_pdf/CPL_02-02-079.pdf.