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OSHA requirements are set by statute, standards and regulations. Our interpretation letters 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 we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at https://www.osha.gov.
May 21, 2015
The Honorable Sherrod Brown
713 Hart Senate Office Building
Washington, DC 20510
Dear Senator Brown:
Thank you for your inquiry of January 9, 2015, to the Department of Labor's Office of Congressional and Intergovernmental Affairs. Your letter was forwarded to the Occupational Safety and Health Administration (OSHA) for response. You requested OSHA's assistance in responding to an inquiry from one of your constituents, Mr. Doug Schattinger, of Cleveland, Ohio, about the Hazard Communication Standard (HCS 2012), 29 CFR 1910.1200. Your constituent's questions, followed by our responses, are below.
Background: Your constituent manages a small manufacturing business that makes paint for athletic fields. The company employs approximately 110 people and is concerned about the cost associated with updating labels and safety data sheets (SDSs), as well as using a second color for the warning pictogram. Your constituent also raised a concern that his company may be unable to meet the June 1, 2015 deadline because his company plans to rely on SDS information not-yet-received from the upstream suppliers of ingredients or components used to make his paints. The upstream suppliers also have until June 1, 2015, to provide their updated SDS information to his company and to other users of those chemicals. A third concern raised by your constituent relates to possible differences in requirements for U.S. Department of Transportation (DOT) labels versus HCS 2012 labels.
Question 1: Does every chemical that is shipped as of June 1, 2015 need to be compliant with the new OSHA hazard communication requirements?
Response: Manufacturers and importers are required to develop and provide HCS 2012-compliant safety data sheets and labels for hazardous chemicals to downstream users by June 1, 2015, in accordance with 29 CFR 1910.1200(j)(2). OSHA understands the complexity and scale of the changes required of manufacturers, such as those identified by your constituent, during this transition period. However, OSHA continues to believe that the Hazard Communication Standard, as currently designed, is necessary for the long-term safety of downstream consumers and the current compliance deadline is appropriate.
OSHA has reviewed the various options available to the Agency to address the issue raised and can provide relief through enforcement guidance. OSHA is able to use its enforcement discretion when compliance staff considers whether manufacturers and importers have performed their due diligence and made good faith efforts to obtain necessary information to comply with the June 1, 2015 effective date. Our policy allows us to consider barriers to the downstream flow of information that are beyond the manufacturer's or importer's control in deciding whether and how to pursue enforcement actions. Manufacturers and formulators should therefore document all efforts to alternatively obtain the required information, such as attempts to contact their supplier to obtain the proper information; reasonable efforts to find alternate suppliers who could provide timely and accurate classifications; and reasonable efforts to find relevant data themselves.
Question 2: Does the OSHA HCS requirement for labels conflict with the Department of Transportation (DOT) labels?
Response: The OSHA pictograms do not replace the diamond-shaped labels that the DOT requires for the transport of chemicals, including chemical drums, chemical totes, tanks or other containers. Those labels must be on the external part of a shipped container and must meet the DOT requirements set forth in 49 CFR 172, Subpart E. If a label has a DOT transport pictogram, Appendix C.2.3.3 of HCS 2012 states that the HCS pictogram for the same hazard shall not appear. However, DOT does not view the HCS pictogram as a conflict, and for some international trade both pictograms may need to be present on the label. Therefore, the Agency will allow both DOT and HCS pictograms for the same hazard on a label. OSHA worked with DOT to reconcile labeling conflicts, and the two agencies continue to work together.
While the DOT diamond label is required for all hazardous chemicals on the outside shipping containers, the HCS 2012 label must be on the hazardous chemical's immediate container. For further information, a copy of the OSHA Brief, Hazard Communication: Labels and Pictograms* is enclosed. This and other information can be found on OSHA's Hazard Communication Safety and Health Topics page at https://www.osha.gov/dsg/hazcom/index.html.
Question 3: Does OSHA know the cost burden the required changes to labels and SDSs will impose on small companies?
Response: During the development of the HCS 2012, OSHA was required to determine if this standard was economically feasible. This is explained in Section VI of the preamble of the 2012 Hazard Communication Federal Register (Volume 77, No. 58, March 26, 2012, pgs. 17605-17683). The Regulatory Flexibility Act, as amended by the Small Business Regulatory Fairness Act (SBREFA), required OSHA to determine if the regulation had a significant impact on a substantial number of small entities. As explained in the preamble, it was determined that the rule would not have a significant impact on small entities.
Thank you for your interest in safety and health and your desire to ensure the accuracy of safety data sheets and labels for hazardous chemicals. We hope your constituent finds the enclosed enforcement guidance helpful. OSHA is available to answer any questions that you may have on how this enforcement guidance would work. If we may be of further assistance, your staff may contact Elva Linares in the Office of Congressional and Intergovernmental Affairs at (202) 693-4600.
David Michaels, PhD, MPH
*Accessibility Assistance: Contact OSHA's Office of Communications at 202-693-1999 for assistance accessing PDF and MP3 materials.