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CPDA Provides OSHA an Evaluation of Cost Impact of HCS 2012 Relabeling Requirements

On April 21, 2017 CPDA President, Sue Ferenc wrote a letter to Maureen Ruskin, Deputy Director of OSHA’s Directorate of Standards and Guidance, that details the significant financial costs that would be imposed upon distributors of non-pesticide agricultural products under the relabeling requirements of  paragraph (f)(11) of the  Hazard Communication Standard (HCS 2012).  CPDA’s letter was submitted in response to a request made by OSHA, during a November 16, 2016 stakeholder meeting, that the Council evaluate the regulatory ramifications of substituting the word “manufactured” for the word “shipped” in paragraph (f)(11).  During the November stakeholder meeting, OSHA also requested that CPDA provide supplemental information on costs associated with relabeling products in warehouses due to the current use of the word “shipped” in the regulation, instead of the word “manufactured” as CPDA has proposed.

 

OSHA’s request came as the Agency announced that it would be initiating efforts to modify HCS 2012 to better align the rule with the sixth revision of the GHS.  Agency officials have signaled that potential revisions to HCS 2012 could encompass a range of implementation issues including those emanating from section (f)(11) of the regulation that requires non-pesticide agricultural product labels to be updated within six months of receiving new hazard information before they can be shipped from the warehouse.

 

CPDA has engaged extensively with OSHA on this issue voicing concerns that warehouses are not equipped to safely relabel sealed product containers and that this requirement would subject warehouse workers to unnecessary health and safety risks.  Moreover, CPDA has argued that OSHA’s switch from “hazard determination” to “hazard reclassification” as the trigger for relabeling product under HCS 2012 is likely to result in a “dynamic” or recurring and costly compliance requirement that will significantly expand the scope of the (f)(11) provision of the regulation.  In addition, CPDA has objected that this provision of HCS 2012 conflicts with another requirement in the rule that prohibits defacing or removing labels from hazardous chemicals in sealed containers in warehouses.

 

In its April 21st letter, CPDA reiterated its recommendation that OSHA follow the “Released for Shipment” precedent that was developed when EPA amended its pesticide container and containment final rule to identify the point in time that a product first enters commerce and becomes subject to label compliance enforcement.  This is when the product leaves the production line for storage, sale or distribution, and is packaged and labeled in a manner in which it will be distributed, sold or stored.  Thus, CPDA explained, a production unit is “Released for Shipment” only once and retains that status, including its label compliance status, until it dissipates in commerce.

 

In its letter, CPDA summarized the results of an informal survey of its member companies regarding the costs and options associated with the potential need to relabel product that was compliantly labeled when manufactured.  CPDA pointed out that for the agrotechnology product industry alone, if revision of HCS 2012 does not exempt HCS 2012-compliantly labeled warehoused products from the requirement to be relabeled given reclassification or rulemaking, all individual “end-use” product containers could need to be relabeled.  “A very conservative estimate of the number of agrotechnology product containers that would have to be relabeled by distributors,” CPDA stated, “would be approximately 1,250,000 containers on 13,500 pallets.”  CPDA noted that the costs of relabeling or reworking product in the warehouse or reworking the product by shipping and repackaging elsewhere, will vary greatly depending on such factors as product type (liquid versus dry), container type (small jugs, large bulk tanks/totes, plastic bags), and the volume as well as value of the product.  CPDA emphasized, “There are no economies of scale in relabeling product so the cost to relabel high volumes of product containers can be crippling.”

 

As OSHA proceeds with its consideration of possible revisions to HCS 2012, CPDA will continue to advocate for the requested change from “shipped” to “manufactured” in any modification of the regulation.  A copy of CPDA’s April 21st letter may be accessed by clicking here.

OSHA Acknowledges CPDA Concerns in Response to Joint Industry Petition on Relabeling Requirements of HCS 2012

 

The U.S. Occupational Safety and Health Administration (OSHA) has issued a December 9, 2016 response to the joint industry petition filed on May 24, 2016 by CPDA, the Agricultural Retailers Association, the International Sanitary Supply Association, and the Society of Chemical Manufacturers and Affiliates requesting that the Agency issue a Direct Final Rule to amend its 2012 Hazard Communication Standard (HCS 2012).  Under the existing regulations, all products bearing 1994 or 2012 compliant labels when initially received in a warehouse are subject to relabeling within six months of obtaining new hazard information before they can be shipped from the warehouse.  CPDA and the other petitioners sought to have OSHA clarify that when firms handling products in sealed containers in warehouses become aware of significant new chemical hazard information they may comply with HCS 2012 by the electronic transmission of an updated label to downstream entities in a manner similar to how updated safety data sheets are transmitted.  Unfortunately, OSHA denied the request for a Direct Final Rule maintaining that the remedy sought by the petitioners constituted a “multifaceted” change to the HCS 2012 that would impact not only manufacturers and distributors, but workers as well and hence would require a full rulemaking with notice and comment.  However, the Agency did express its willingness to consider CPDA’s concerns as OSHA begins the process of initiating a rulemaking to align the HCS 2012 with the sixth revision of the GHS.  Specifically, OSHA acknowledged CPDA’s concerns with regard to the significant chemical exposure and ergonomic risks that workers would be subjected to if required to re-label products previously packaged for shipment and stored in warehouses.  Furthermore, OSHA recognized the concerns articulated by CPDA that most warehouses lack the automated equipment necessary to re-label these products in an ergonomically safe and effective manner.

 

These issues were raised by CPDA President Sue Ferenc during a November 16, 2016 “listening session” conducted by OSHA for purposes of receiving stakeholder input as the Agency prepares to begin its rulemaking to revise the HCS 2012.  As a follow-up to the November meeting, CPDA is preparing comments for submission to OSHA in early January on the relabeling impacts of HCS 2012 as it is currently written, including its associated ergonomic and worker safety risks, estimated compliance costs, and the regulatory impacts of allowing revised labels to appear on products manufactured (rather than shipped) six months after learning of significant new hazard information.  To read OSHA’s December 9, 2016 response to the joint industry petition, click here.

CPDA Submits Comments on EPA’s Proposed Registration Review Decision for 22 Sulfonylurea Herbicides

On Monday, November 14, 2016, CPDA submitted comments to EPA in response to the Agency’s “Proposed Interim Registration Review Decision for 22 Sulfonylurea (SU) Herbicides.”  The availability of the proposed interim decision document was originally announced for public comment in the July 14, 2016 Federal Register and subsequently reopened for public comment in the September 28, 2016 Federal Register.

 

In its comments, CPDA objected to EPA’s proposed adoption of an “ultra-conservative” approach which would mandate the use of very coarse nozzles for all 22 SUs including those chemicals in the group with the smallest risk footprint.  CPDA called upon the Agency to instead determine for each SU whether a medium, coarse or very coarse droplet nozzle is appropriate, balancing the marginal benefit of the mitigation measure with the costs to farmers and the potential for inadvertent promotion of weed resistance.  CPDA emphasized that a blanket requirement calling for the use of coarse nozzles for all of the SU herbicides ignores the benefits that can be derived from employing Drift Reduction Technology (DRT) in the application of these chemicals, including the use of certain adjuvant-nozzle combinations that have been shown to reduce drift.  CPDA stated, “Each SU herbicide may have a different toxicity index and thus exhibit a unique set of characteristics when used with various adjuvant-nozzle combinations.  These are DRT practices that offer better herbicide performance, resistance management and drift reduction.”  CPDA pointed out that EPA’s “one size fits all” approach would actually result in an effect contrary to the Agency’s stated objective of minimizing herbicide resistance.  The less efficacious application method of using coarse nozzles, CPDA explained, would likely result in farmers resorting to increased application rates and increased numbers of applications in trying to achieve the same desired outcomes in weed control.  Such activity could actually promote, rather than reduce, herbicide resistance.  CPDA concluded its comments by offering to meet with EPA to provide more information on the effect of droplet size on the efficacy of SUs and pesticides.  To read CPDA’s comments, please click here.

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