The purpose of this memorandum is to provide enforcement guidance on the June 1, 2015 effective date - the date by which chemical manufacturers, importers, distributors and employers must be in compliance with all modified provisions of the HCS, other than the two exceptions for distributors and employers at 29 CFR 1910.1200(j)(2)(i) and (ii). This enforcement guidance applies only to HCS 2012 compliance inspections of chemical manufacturers, importers, and distributors in their classification of hazardous chemicals and development of safety data sheets (SDSs) and labels for chemical mixtures.
Overview
This memorandum describes the Agency's enforcement position on the HCS June 1, 2015 effective date for manufacturers and importers, including product formulators, that have exercised reasonable diligence and good faith to classify their chemical mixtures according to HCS 2012 and consequently develop HCS 2012-compliant SDSs and labels. However, due to circumstances beyond their control, they have not received classifications and SDS information from upstream suppliers of raw materials. In addition, this enforcement guidance addresses when manufacturers and importers must develop HCS 2012-compliant SDSs and labels after receiving upstream supplier SDSs, as well as how this guidance affects distributors..........................
In order to determine if a manufacturer or importer has established "reasonable diligence" and "good faith efforts," the CSHO must review its overall efforts, attention, and action(s) taken to comply with HCS 2012. Upon request from a CSHO, a manufacturer or importer must provide documentation of its substantive efforts to:
- Obtain classification information and SDSs from upstream suppliers;
- Find hazard information from alternative sources (e.g., chemical registries); and,
- Classify the data themselves.
Establishing reasonable diligence and good faith effort requires that the manufacturer or importer demonstrate attempt(s) to obtain the necessary SDSs through both oral and written communication directly with the upstream supplier. For each mixture shipped by a manufacturer or importer after June 1, 2015 that does not comply with HCS 2012, the CSHO shall consider whether the manufacturer or importer:
(a) Developed and documented the process used to gather the necessary classification information from its upstream suppliers and the status of such efforts;
(b) Developed and documented efforts to find hazard information from alternative sources (e.g., chemical registries);
(c) Provided a written account of continued dialogue with its upstream suppliers, including dated copies of all relevant written communication with its upstream suppliers;
(d) Provided a written account of continued dialogue with its distributors, including dated copies of all relevant written communication with its distributors informing them why it has been unable to comply with HCS 2012; and,
(e) Developed the course of action it will follow to make the necessary changes to SDSs and labels.
Although the CSHO must consider all of the above factors, any combination of these efforts may, depending on the circumstance, be consistent with reasonable diligence and good faith efforts. The CSHO shall always consider whether the manufacturer or importer attempted to obtain the hazard information in a timely manner (i.e., in a manner that would have enabled it to comply with the June 1, 2015 effective date) in determining whether a manufacturer or importer exercised reasonable diligence and made good faith efforts to comply. Reasonable diligence and good faith also requires that the manufacturer or importer provide a clear timeline for when it expects to comply with HCS 2012........
