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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.
November 16, 2015
Ms. Jennifer C. Gibson
Vice President, Regulatory Affairs
National Association of Chemical Distributors
1560 Wilson Blvd., Suite 1100
Arlington, Virginia 22209
Dear Ms. Gibson:
This is in response to your May 7, 2015, letter to the Occupational Safety and Health Administration (OSHA's) Directorate of Enforcement Programs and your follow-up meeting with OSHA representatives. The National Association of Chemical Distributors (NACD) requested that OSHA clarify its February 9, 2015, enforcement guidance memorandum and provide assurance that OSHA's enforcement discretion policy relating to the new requirements of the Hazard Communication Standard (HCS 2012) is not limited solely to chemical mixtures, but rather applies more broadly to downstream users that have not received updated information due to circumstances beyond their control.
OSHA is mindful of the complexity and scale of the changes required of manufacturers, importers and distributors as they take actions to comply with the HCS 2012. The Agency continues to believe that the Hazard Communication standard as currently designed is necessary for the long-term safety of downstream consumers.
As the NACD is aware, OSHA issued on February 9, 2015, an interim enforcement memorandum which explained that in situations where a manufacturer or importer of mixtures cannot comply with the June 1, 2015 effective date despite its reasonably diligent 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. This enforcement discretion applies in the limited circumstances where a covered entity exercised reasonable diligence and good faith efforts and is able to demonstrate those efforts through documentation.
Your letter described the situations of some of the NACD's supply chain members. OSHA reviewed your request to expand the February 9th memorandum, and in response to yours and others' similar concerns, on May 29, 2015, OSHA issued further interim enforcement guidance to address the limited continued use of HCS 1994-compliant labels.
The May 29th memorandum broadened the Agency's enforcement discretion to address manufacturers, importers, and distributors other than those engaged in formulating mixtures. The May 29th memorandum included enforcement guidance for a distributor in a supply chain that blends, mixes, and/or packages hazardous chemicals. Under the HCS 2012, these types of distributor businesses are considered to be manufacturers, and thus, the guidance discussed within the February 9th and May 29th interim memoranda for manufacturers and importers applies to them as well.
As you are aware, OSHA issued the revised Hazard Communication compliance directive on July 20, 2015, and the February 9th and May 29th memoranda have been incorporated into it to ensure uniform field enforcement. The directive is available on OSHA's website at http://www.osha.gov/OshDoc/Directive_pdf/CPL_02-02-079.pdf*.
Thank you for your interest in occupational safety and health. We appreciate the NACD bringing the concerns of their members to OSHA's attention, and hope you find this additional 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 ensure 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.