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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.
July 27, 2015
Ms. Robin Smith
RMS Interests, LLC
251 Hidden Creek Drive
Dripping Spring, Texas 78620
Dear Ms. Smith:
Thank you for your letter to the Occupational Safety and Health Administration's (OSHA) Directorate of Enforcement Programs. Your questions concern the safety data sheets (SDSs) requirements under the revised Hazard Communication standard (HCS 2012), 29 CFR 1910.1200. 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 paraphrased questions and our responses are below. Please excuse the delay in our response.
Question 1: Is it permissible for an employer to maintain material safety data sheets (MSDSs) instead of safety data sheets (SDSs) for chemicals that were received by the employer prior to June 1, 2015?
Response: Yes, as long as the MSDS is compliant with the former Hazard Communication standard, HCS 1994. Manufacturers and importers must provide revised, 16-section SDSs by June 1, 2015. The chemical manufacturer or importer is required to provide the updated SDSs with the first shipment after a safety data sheet is updated or upon request.
Question 2: If chemicals received directly from foreign manufacturers after June 1, 2015, are not accompanied by SDSs which comply with the revised standard, what is the expectation for the employer? Is it sufficient to demonstrate through internal documentation that the employer has made a genuine attempt to obtain new SDSs?
Response: Generally, importers are the first businesses with employees within the Customs Territory of the United States to receive hazardous chemicals produced in other countries for distribution within the United States. The importers must provide HCS 2012-compliant SDSs to others downstream by June 1, 2015. However, OSHA recognizes that some manufacturers and importers may be unable to create updated SDSs because they have not received the necessary information from upstream suppliers to classify and develop their own SDSs. In this limited circumstance, OSHA will use its enforcement discretion to evaluate whether the manufacturer or importer has performed due diligence and made good faith efforts to obtain the necessary information to comply with the June 1, 2015 effective date. Manufacturers and importers 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. Where the manufacturer or importer provides sufficient documentation of these efforts, OSHA will, on a case-by-case basis, exercise enforcement discretion to not cite the manufacturer or importer for not having HCS 2012-compliant SDSs.
On July 20, 2015, OSHA issued the revised Hazard Communication 2012 directive, CPL 02-02-079. The revised directive includes guidance on hazard classification, and updates the requirements for labeling and for safety data sheets (SDSs). The Instruction also provides guidance to compliance safety and health officers on how to enforce the revised Hazard Communication standard during its transition period and when fully implemented. 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*.
Employers who are not manufacturers, importers, or distributers must maintain the most recently received version of the MSDS/SDS. An employer who is maintaining an MSDS for a product received prior to June 1, 2015, would be considered to be compliant with the Hazard Communication standard unless the manufacturer, importer or distributor has provided a new, HCS 2012-compliant SDS and the employer did not maintain the new SDS. Employers may contact manufacturers, importers or distributors of products they have previously ordered to request new SDSs, and under 29 CFR 1910.1200(g)(6)(iv), the SDS must be provided. If the manufacturer is located outside the United States, the contact would be made to the distributer or importer. If an employer has made a good faith effort to contact the importer or distributor and has still not received the SDS, the local OSHA Area Office may be contacted to provide assistance.
Question 3: Is it acceptable for the employer to ship unused product back to the foreign supplier or manufacturer with the most recently received version of the MSDS, even if it does not meet the new standard?
Response: The responsibilities of the employer have not changed under the HCS 2012. Under paragraphs 1910.1200(g)(1) and (g)(8), employers must have and maintain the most current MSDS/SDSs and make them available to their employees. An employer who is not a chemical manufacturer has no responsibility to create SDSs. The employer in the scenario you described may use the most recently received MSDS/SDS when shipping back unused products. Ideally, the manufacturer or supplier should already have the most recent MSDS/SDS for that product. The MSDS/SDS is for the benefit of downstream employees, such as dock workers, who may be exposed to the hazardous chemical(s).
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.
Thomas Galassi, Director
Directorate of Enforcement Programs
*Accessibility Assistance: Contact the OSHA Directorate of Enforcement Programs at (202) 693-2129 for assistance accessing PDF materials.