March 3, 1989

The Honorable Bill Emerson
House of Representatives
Washington, D.C. 20515

Dear Congressman Emerson:

This is in response to your letter of January 4, addressed to Ms. Ruth Knight, Director, Intergovernmental Affairs, on behalf of your constituent, Mr. Johnathan Delano, regarding an Occupational Safety and Health Administration (OSHA) regulation requiring distributors to provide material safety data sheets to their customers.

The rule in question is the Hazard Communication Standard (HCS), 29 CFR 1910.1200, which was first promulgated by OSHA in 1983. On August 24, 1987, OSHA extended the application of this rule from manufacturing industries to all industries where employees are exposed to hazardous chemicals. This standard does not apply to consumers. The rule affirms that employees have the right to know the hazards of materials they work with, as well as appropriate steps they can take to protect themselves. This is to be accomplished by having a hazard communication program in each covered facility, with labels on containers of such hazardous materials, more detailed information in the form of material safety data sheets, and employee training programs. Your constituent, as a distributor, is only required to pass along the material safety data sheets to the downstream customer. Many of the products sold by distributors are classified as "articles" and as such would be exempt from the requirements of the standard. The HCS defines an article as a manufactured item: (i) which if formed to a specific shape or design during manufacture; (ii) which has end use function(s) dependent in whole or in part upon its shape or design during end use; and (iii) which does not release, or otherwise result in exposure to, a hazard chemical, under normal conditions of use. Accordingly, manufacturers or importers must do their best to anticipate the uses of their products and determine whether downstream employees can be exposed to a hazardous chemical. If such an exposure does occur or has the potential to occur, then the product could not be considered as an article.

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The material safety data sheet must be provided to commercial customer with the initial shipment and with the first shipment after the data sheet has been updated. Retail distributors must provide, upon request, material safety data sheets to commercial customers and post a sign or otherwise inform them that a material safety data sheet is available. This provision of the HCS was included to prevent the necessity of providing a sheet to each customer of a retail establishment in order to ensure that employers received a material safety data sheet. Your constituent is not required to provide material safety data sheets to retail distributors that have informed him that they do not sell the product to commercial customers or open the sealed container to use it in their own workplaces.

The Office of Management and Budget (OMB) found all three of the requirements of the HCS to meet the provisions of the Paperwork Reduction Act. These three requirements are: 1) the requirement that material safety data sheets be provided on multi-employer worksites; 2) the coverage of any consumer product that falls within the "consumer products" exemption included in Section 311 (3) of the Superfund Amendments and Reauthorization Act of 1986; and 3) the coverage of any drugs regulated by the Food and Drug Administration in the nonmanufacturing sector. The second listed provision above may affect many of the products sold by your constituent.

On August 19, 1988, The United States Court of Appeals for the Third Circuit ruled that the OMB had exceeded its authority, under the Paperwork Reduction Act, in disapproving three provisions of the expanded HCS. The court ordered OSHA to "publish in the Federal Register a notice that those parts of the August 27, 1987, HCS which were disapproved by OMB are now effective." On September 2, 1988, the Department of Justice filed a petition for rehearing with a suggestion for rehearing by the entire court. The Court has now denied the petition for rehearing (November 29, 1988), as well as requests for stay of the decision. In addition, a further motion by industry representatives for a stay of the decision was denied on January 24, by U.S. Supreme Court Justice Brennan. The Solicitor General has authorized the filing of a petition for a writ of certiorari on behalf of the government in the United Steelworkers case. Also, on January 27, industry resubmitted its stay request with Chief Justice Rehnquist in both United Steelworkers and Associated Builders and Contractors. That request is pending. If certiorari is granted, the Supreme Court will ultimately decide the enforceability of these provisions. The Third Circuit's decision became effective January 30 of this year and all provisions of the HCS are now in effect in all industries.

OSHA has developed a number of resources to assist employers in complying with the HCS. A kit produced by OSHA is available that provides step-by-step guidance on complying with the requirements of the standard and serves equally well the needs of all employers, regardless of the industry in which they operate.

The kit may be purchased through the Superintendent of Documents, U.S. Government Printing Office, Washington D.C., 20402-9325, at a cost of $18.00. It has GPO Order No. 929-022-00000-9 and is OSHA 3104 Hazard Communication Compliance Kit. It may be ordered by telephone from GPO by calling (202) 783-3238 and using a credit card. In addition, a booklet entitled "Chemical Hazard Communication" (copy enclosed) provides employers with an easy to read explanation of the responsibilities of employers under the HCS. The booklet also contains a directory of all OSHA Regional and Area Offices. Employers may contact a Regional or Area Office for additional information or assistance. I hope this information is helpful to you in responding to your constituent. If I may be further assistance, please feel free to contact me again.

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Sincerely,

John A. Pendergrass
Assistant Secretary