January 30, 1997

Mr. Jason Scriven
Government Affairs
3E Company
4920 Carroll Canyon Road
San Diego, California 92121

Dear Mr. Scriven:

We have received the inquiries you directed to the Occupational Safety and Health Administration (OSHA) Assistant Regional Administrators, regarding your company's system for providing businesses with access to Material Safety Data Sheets (MSDSs) required by OSHA's Hazard Communication Standard (HCS). The following is submitted in response. For the purpose of clarity, I have paraphrased your questions to address the system you described.

1. As a broad answer to your first question, OSHA inspectors follow the guidance outlined in our compliance directive, CPL 2-2.38C (which is enclosed for your information), during an inspection. In addition to this broad answer, we considered three other possible aspects of your first question and have answered these individually below.
   1. Is the system of electronic access to MSDSs (as described in your letter) acceptable under the Hazard Communication Standard?

      Under the HCS, 29 CFR 1910.1200, paragraph (g)(1) requires manufacturers, importers, and distributors to send MSDSs to downstream users with the initial shipment of a hazardous chemical and with the first shipment after MSDSs are updated. The manufacturer, importer, or distributor has the flexibility under the standard to utilize MSDS distribution services; however, responsibility for MSDS distribution and the quality of information on the MSDS remains with the manufacturer, importer, or distributor. This responsibility cannot be contracted out. If HCS violations occurred, OSHA generally would not cite a service provider, as primary responsibility lies with the manufacturer, importer, or distributor and the employer. Paragraph (g)(8) of the HCS was modified on February 9, 1994, to indicate that "electronic access, microfiche, and other alternatives to maintaining paper copies of the material safety data sheets are permitted as long as no barriers to immediate employee access...are created by such options." The employer (chemical recipient) would have to be agreeable to this type of system and would have to have access to the necessary technology. Additionally, the manufacturer would need to ensure that an alternative means of providing the MSDSs was available in the event of a system failure.

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   2. Who would be responsible if an employer using this service was missing MSDSs for products to which their employees were exposed?
      The employer is responsible to ensure that employees have access to MSDSs for the chemicals to which they are exposed. If, during an OSHA inspection, an employer is missing MSDSs for hazardous chemicals, the employer should be able to demonstrate that they have made an effort to obtain those MSDSs from the chemical manufacturer. This effort would consist of documentation showing that the manufacturer was contacted and requested to provide the MSDSs. Upon presentation of this documentation by the employer, OSHA would follow established procedures and contact the manufacturer to request the MSDS.

   3. Who is responsible for the quality of MSDSs which are supplied through a service such as this?
      The chemical manufacturer is responsible for the initial information on the MSDSs. If this information is altered by any of the subsequent entities which handle the MSDS, then that entity becomes responsible for the MSDS content.

2. What criteria regarding employee access to MSDSs must an employer meet to be in compliance with the Hazard Communication Standard?
   The employer must ensure that in each workplace there are no barriers to immediate employee access to MSDSs.

3. Does the program which the 3E Company provides to businesses meet the "no barriers" criterion for employee access to MSDSs?
   As described, the program, with coordination between the parties, could meet the requirements of chemical manufacturers to provide MSDSs and the employers requirement to maintain and ensure that MSDSs are readily accessible under the Hazard Communication Standard. It should be noted, however, that compliance would also be determined by the employer's utilization of this system. For instance, in the system you described, the downstream user of the chemical must have access to a fax machine or a barrier has been created. Employers must also ensure that employees know how to access an MSDS from such a system and that a back-up exists in case the primary system fails.

Sincerely,

John B. Miles, Jr., Director
Directorate of Compliance Programs