Electronic safety data access and distributor duties under hazard communication

July 15, 1996

Mr. Mike Lopez
Safety & Compliance Associates
[Recipient address omitted]
Dear Mr. Lopez:

Thank you for your letter of May 9, addressed to John B. Miles, Jr., Director of the Directorate of Compliance Programs, concerning interpretation of the Occupational Safety and Health Administration's (OSHA) Hazard Communication Standard (HCS). Your questions and OSHA's responses are presented below in the order they were raised.

1. Is there an acceptable alternative to having route drivers maintain an in-vehicle library of MSDSs in sufficient quantity to cover every commercial sale which may be made during the day?

The HCS is characterized as a performance-oriented standard. This means that your company has the flexibility to comply with the standard in a way that best fits your business practices and meets the performance requirements of the standard.

Paragraph 1910.1200(g)(7) of the HCS is particularly relevant to your question, it describes distributor requirements for distributing MSDSs. As you may know , MSDSs are only required to be sent at the time of initial shipment and when the MSDS is updated. In terms of alternative compliance strategies, you may want to consider utilizing electronic MSDS copies on computer laptops with printers, or fax-modems as a solution to transporting the hard copies of MSDS. The ultimate solution is yours as long as there are no barriers to the flow of information to the downstream users of the hazardous chemicals.

2. In the workplace, if MSDS(s) are made available via computer terminal and employees are properly trained to access them, is a printer necessary or can the MSDS simply be read on the screen?

The purpose of MSDS under the rule is to provide detailed information on each hazardous chemical, including potential hazardous effects, its physical and chemical characteristics, and recommendations for appropriate protective measures. Employers must have an MSDS for each hazardous chemical that they use in the workplace.

In terms of employee accessibility, paragraph 1910.1200(g)(8) of the HCS states that these MSDSs must be readily accessible to employees when they are in their work areas during their work shifts. The standard also states that "Electronic access, microfiche, and other alternatives to maintaining paper copies of the material safety data sheet are permitted as long as no barriers to immediate employee access in each workplace are created by such options." This requirement may be accomplished in many different ways; the employer must decide what is appropriate for the particular workplace. The key to compliance with the rule is that employees get the information when they need it. Actual paper copies of data sheets, computer terminal access, FAX, or other means of providing readable copy on-site are permitted, again, as long as no barriers to employee access exist.

For your information, the HCS was amended on February 9, 1994, and a copy of the rule is enclosed. Also enclosed are copies of the letter to Dr. Leo Sioris, with his incoming letter and the memorandum to Michael G. Conners referenced in your letter. The 1989 letter to Dr. Leo Sioris does not reflect the amended rule and will be withdrawn from the OSHA Computer Information System (OCIS). We regret any confusion this letter may have caused.

2b. If computer terminals, FAX, etc. are utilized, are employers expected to maintain a "back-up" hardcopy or will employers be held in violation of the HCS in the event of power failures or other unforeseeable events which may render the electronic system temporarily inoperative?

As stated above, the HCS requires that employers ensure that MSDSs are readily accessible during each work shift to employees when they are in their work areas, and access can be accomplished using electronic transmission of the sheets. In the case of electronic transmission, employers are required to have a back up for likely system malfunctions or during periods of shutdown for temporary servicing. As a back up system, employers can either maintain a hardcopy or utilize some other means that ensures employees access to MSDSs. Obviously, the other means of compliance would depend on the method of MSDS transmission, for example, if a FAX system is used, the employer should make arrangements for the use of another FAX machine should theirs malfunction.

3. Does this [FDA] exemption include compressed gases (e.g., oxygen), subject to FDA regulations, when packaged in cylinders?

No. The HCS exemption for drugs in solid final form does not apply to compressed medical gases.

4. OSHA has defined a "manufacturer" as including a distributor who repackages and/or blends chemicals. If such a distributor repackages chemicals into smaller containers and uses the MSDS which was received from the manufacturers of the bulk component(s), the name and address on the distributor's label will differ from the name and address on the manufacturer's MSDS. Assuming the chemical name and appropriate hazard warnings agree between the MSDS and label, is this acceptable?

Employees must be able to cross reference the label on the container with the proper MSDS. The approach described in your letter is not acceptable since it may confuse downstream users of the product who need to contact the responsible party. The HCS requires a responsible party to be named on both the MSDS and the shipping label. The responsible party must be able to provide additional information on the hazardous chemicals, or clarification of the information on the MSDS or label, as well as, additional emergency procedures, if necessary. Thus, one solution for a repackager who does not change nor need to change the hazard information on the label or MSDS is to obtain consent from the chemical manufacturer to be the designated responsible party for both the MSDS and the shipping label.

5. According to a February 25, 1992-memo, (Dshalhoub to the Solicitor, file: f12i01.irs), the Review Commission held that the Secretary's interpretation of the term "appropriate hazard warnings" in 29 C.F.R. 1910.1200(f)(1)(ii) to require employers to list the specific "target organ" effects, of hazardous chemicals on container labels of substances shipped to downstream users, was unreasonable and not entitled to deference. Is this ruling still in effect?

No. The Agency's interpretation of the rule in requiring health effects information, including information on target organ effects, was challenged and upheld in Martin v. American Cyanamid, on No. 92-3321 (6th Circuit, September 15, 1993.) For a further explanation on this issue please refer to page 6156 of the preamble (enclosed) to the HCS.

6. May a distributor satisfy the requirement to give a downstream employer an MSDS (in an over-the-counter sale) by posting a sign similar to that of a retail distributor?

No. This would not be in compliance with the rule.

Should you have further questions, please contact our Regional Office in Atlanta, Georgia at 404-347-3573. Thank you for your interest in occupational safety and health.

Sincerely,
Ruth McCully, Director
Office of Health Compliance Assistance

Enclosure

[Requester letter reproduced on OSHA page; omitted here.]