NACD requests administrative stay on OSHA HCS rule

May 26, 2015

The National Association of Chemical Distributors sent a letter and supplemental information to the Occupational Safety and Health Administration (OSHA) on May 21 requesting an immediate, short-term administrative stay through December 1, 2015, regarding the agency's enforcement of its Hazard Communication Standard (HCS) rulemaking for companies' chemical products previously labeled and stored in their existing inventory.

In the letter, NACD President Eric R Byer said OSHA made an exception for distributors to continue shipping products labeled by manufacturers after the June 1 deadline. However, he highlighted that "more than 75% of NACD chemical distributor members are prevented from continuing to ship stockpiled products after June 1" because "HCS defines 'chemical manufacturer' broadly as 'an employer with a workplace where chemical(s) are produced [manufactured, processed, formulated, blended, extracted, generated, emitted, or repackaged] for use or distribution.'"

Byer emphasized this broad definition means "the majority of chemical distributors are regulated as manufacturers, and therefore cannot ship any stock after June 1, 2015, without an updated label regardless of whether the label is created by that company or the upstream supplier."

Byer also stressed that a precedent exists for OSHA to provide an administrative stay. He wrote, "The agency previously issued an administrative stay that remained in effect until the new standard on requiring updated labeling was lifted in response to a request from chemical manufacturers."

Byer also cited OSHA's own definition of an administrative stay, noting, "'an administrative stay is a tool available to OSHA to cease enforcement for reasons the agency finds appropriate. […] It is usually a short-term solution to a problem that can be resolved through discussions with affected parties.'"

Lastly, Byer explained the June 1 enforcement deadline is problematic for many NACD member companies because of outside factors. He emphasized, "The difficulties companies face because of issues beyond their control in replacing labels on prepackaged stock include safety concerns, supply chain disruptions, feasibility issues, contractual obligations, and economic impacts. These difficulties, coupled with the intent of the delayed effective date for distributors, are appropriate reasons for OSHA to cease enforcement of certain provisions of the standard."

An administrative stay through December 1 would give distributors enough time to address these issues and come into compliance with the new rule.