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Workplace Hazardous Materials Information System (WHMIS) Regulations

made pursuant to Section 82 of the
Occupational Health and Safety Act
S.N.S. 1996, c. 7
O.I.C. 88-987 (September 20, 1988, effective October 31, 1988), N.S. Reg. 196/88
as amended by O.I.C. 89-529 (May 9, 1989), N.S. Reg. 64/89


Table of Contents


Short title

These regulations may be cited as the Workplace Hazardous Materials Information System (WHMIS) Regulations.

Interpretation

1 In these regulations

(a) "bulk shipment" means a shipment of a controlled product that is contained without intermediate packaging in

(i) a vessel with a water capacity of more than 454 litres,

(ii) a freight container, a road vehicle, a railway vehicle, a portable tank, a freight container carried on a road vehicle, a railway vehicle, ship or aircraft or a portable tank carried on a road vehicle, a railway vehicle, ship or aircraft,

(iii) the hold of a ship, or

(iv) a pipeline;

(b) "Commission" means the Hazardous Materials Information Review Commission established by subsection 28(1) of the Hazardous Materials Information Review Act;

(c) "container" includes a bag, barrel, bottle, box, can, cylinder, drum, storage tank or similar package or receptacle;

(d) "controlled product" means any product, material or substance specified by the regulations made pursuant to paragraph 15(1)(a) of the Hazardous Products Act to be included in any of the classes listed in Schedule II of that Act;

(e) "Controlled Products Regulations" means the Controlled Products Regulations made pursuant to the Hazardous Products Act;

(f) "Disclosure of Information Regulations" means the Disclosure of Information Regulations made pursuant to the Occupational Health and Safety Act;

(g) "fugitive emission" means a gas, liquid, solid, vapour, fume, mist, fog or dust that escapes from process equipment or from emission control equipment or from a product;

(h) "hazard information" means information on the proper and safe use, storage and handling of a controlled product and includes information relating to its toxicological properties;

(i) "Hazardous Materials Information Review Act" means the Hazardous Materials Information Review Act (Canada);

(j) "Hazardous Products Act" means the Hazardous Products Act (Canada);

(k) "hazardous waste" means a controlled product that is intended for disposal or is sold for recycling or recovery;

(l) "label" includes any mark, sign, device, stamp, seal, sticker, ticket, tag or wrapper;

(m) "laboratory sample" means, in respect of a controlled product, a sample of the controlled product that is intended solely to be tested in a laboratory but does not include a controlled product that is to be used

(i) by the laboratory for testing other products, materials or substances, or

(ii) for educational or demonstration purposes;

(n) "manufactured article" means any article that is formed to a specific shape or design during manufacture, the intended use of which, when in that form, is dependent in whole or in part on its shape or design, and that, under normal conditions of use, will not release or otherwise cause a person to be exposed to a controlled product;

(o) "material safety data sheet" means a document disclosing the information referred to in subparagraphs 13(a)(i) to (v) of the Hazardous Products Act and meeting the requirements of the Controlled Products Regulations, subject to Sections 15 and 16 of these regulations;

(p) "product identifier" means, in respect of a controlled product, the brand name, code name, code number, chemical name, common name, generic name or trade name;

(q) "risk phrase" means, in respect of a controlled product or a class, division or subdivision of controlled products, a statement identifying a hazard that may arise from the nature of the controlled product or the class, division or subdivision of controlled products;

(r) "supplier label" means a label provided by a supplier disclosing the information and displaying the hazard symbols referred to in paragraph 13(b) of the Hazardous Products Act and meeting the requirements of the Controlled Products Regulations;

(s) "supplier material safety data sheet" means a material safety data sheet provided by a supplier pursuant to paragraph 13(a) of the Hazardous Products Act;

(t) "workplace label" means a label which discloses

(i) a product identifier,

(ii) information for the safe handling of the controlled product, and

(iii) that a material safety data sheet, if supplied or produced, is available.

Application

2 (1) These regulations apply to employers and employees in respect of controlled products used, stored or handled at a workplace.

(2) Notwithstanding subsection (1), the provisions of these regulations, in respect of a supplier label and a material safety data sheet, do not apply where the controlled product is any

(a) explosive within the meaning of the Explosives Act (Canada);

(b) cosmetic, device, drug or food within the meaning of the Food and Drug Act (Canada);

(c) control product within the meaning of the Pest Control Products Act (Canada);

(d) prescribed substance within the meaning of the Atomic Energy Control Act (Canada); or

(e) product, material or substance packaged as a consumer product.

(3) Notwithstanding subsection (1), these regulations do not apply where the controlled product is

(a) wood or a product made of wood;

(b) tobacco or a product made of tobacco;

(c) a manufactured article; or

(d) being transported or handled pursuant to the requirements of the Transportation of Dangerous Goods Act (Canada) or the Dangerous Goods Transportation Act.

(4) Notwithstanding subsection (1), these regulations do not apply to hazardous wastes except that the employer shall take every precaution that is reasonable in the circumstances to ensure the safe storage and handling of hazardous waste through the combination of any mode of identification and employee education.

Prohibition

3 (1) An employer shall take every precaution that is reasonable in the circumstances to ensure that a controlled product is not used, stored or handled in a workplace unless all of the applicable requirements of these regulations in respect of labels, identifiers, material safety data sheets and employee education are complied with.

(2) Notwithstanding subsection (1), an employer may store a controlled product in a workplace while actively seeking, by means of a written request to a supplier or other reasonable efforts, information required by these regulations if the employer ensures that the controlled product or the container of the controlled product has applied to it

(a) a workplace label; or

(b) if the employer does not have the information required for a workplace label, a label disclosing that the product is

(i) hazardous, and

(ii) cannot be used or handled at the workplace until further information is obtained.

Employee education

4 The employer shall take every precaution that is reasonable in the circumstances to ensure that an employee who works with a controlled product or in proximity to a controlled product is instructed in

(a) the general content required on a supplier label and workplace label, and the purpose and significance of the information contained thereon;

(b) the general content required on a material safety data sheet and the purpose and significance of the information contained thereon;

(c) procedures for the safe use, storage, handling and disposal of controlled products;

(d) procedures for the safe use, storage, handling and disposal of controlled products contained or transferred in

(i) a pipe,

(ii) a piping system including valves,

(iii) a process vessel,

(iv) a reaction vessel, or

(v) a tank car, tank truck, ore car, conveyor belt or similar conveyance;

(e) procedures to be followed where fugitive emissions are present; and

(f) procedures to be followed in case of an emergency involving a controlled product.

5 (1) An employer shall ensure that the program of employee education required by Section 4 is developed and implemented

(a) for that employer's workplace;

(b) in relation to health or safety hazards that may be met by employees who work with or in proximity to controlled products; and

(c) in consultation with the joint health and safety committee, if any.

(2) An employer shall make reasonable enquiries to determine, so far as is reasonable practicable, that the program of employee instruction required by Section 4 results in the employee being able to apply the information as needed to protect the employee's health and safety and that of other persons at the workplace.

(3) The employer shall review at least annually, or more frequently if required by a change in work conditions or available hazard information, and in consultation with the joint health and safety committee, if any, the instruction and training provided to employees concerning controlled products.

Labels

Supplier label

6 (1) An employer who acquires a controlled product from a supplier for use, storage or handling at a workplace shall ensure that the controlled product or the container of the controlled product received at the workplace has affixed to it a supplier label.

(2) Subject to Sections 15 and 16, as long as any amount of a controlled product remains in a workplace in the container in which it was received from the supplier, an employer shall not remove, deface, modify or alter the supplier label.

(3) Where a label applied to a controlled product or a container of a controlled product becomes illegible or is accidentally removed from the controlled product or the container, the employer shall replace the label with either a supplier label or a workplace label.

(4) An employer who

(a) has received a controlled product in a multi-container shipment where the individual containers have not been labelled by the supplier; and

(b) has made a written undertaking pursuant to subparagraph 14(2)(a)(ii) of the Controlled Products Regulations,

shall affix to each container of the controlled product received at the workplace a label that meets the requirements of the Controlled Products Regulations.

(5) Where a controlled product or a container of a controlled product imported pursuant to Section 23 of the Controlled Products Regulations does not bear a supplier label, an employer who receives the controlled product or the container of the controlled product at a workplace shall affix to it a label that meets the requirements of the Controlled Products Regulations.

(6) An employer who has received a controlled product transported as a bulk shipment shall

(a) affix a supplier label to the container of the controlled product or to the controlled product in the workplace; or

(b) where, pursuant to Section 15 of the Controlled Products Regulations the supplier is not required to label a controlled product transported as a bulk shipment, an employer shall affix a workplace label to the container of a controlled product or to the controlled product in the workplace.

Workplace label for employer-produced products

7 (1) Subject to Sections 15 and 16, where an employer produces a controlled product in a workplace, the employer shall ensure that the controlled product or the container of the controlled product has applied to it a workplace label.

(2) Subsection (1) does not apply to the production of a fugitive emission.

(3) Subsection (1) does not apply when the controlled product is in a container that is intended to contain the controlled product for sale or disposition and the container is or is about to be appropriately labelled.

Workplace label for decanted products

8 (1) Where a controlled product in a workplace is in a container other than the container in which it was received from a supplier, the employer shall ensure that the container has applied to it a workplace label.

(2) Subsection (1) does not apply to a portable container that is filled directly from a container or source that complies with the labelling or placarding requirements of these regulations if

(a) all of the controlled product is required for immediate use; or

(b) the employee who fills the portable container

(i) retains exclusive use and control of the portable container,

(ii) uses the controlled product in the portable container during the shift in which it was filled, and

(iii) is instructed by the employer to ensure that the content of the portable container is clearly identified by some mode of identification clearly legible to employees.

Identification of a controlled product in piping systems and vessels

9 Where a controlled product in a workplace is contained or transferred in

(a) a pipe;
(b) a piping system including valves;
(c) a process vessel;
(d) a reaction vessel; or
(e) a tank car, tank truck, ore car, conveyor belt or similar conveyance,

the employer shall take every precaution that is reasonable in the circumstances to ensure the safe use, storage and handling of the controlled product through employee education and the use of colour coding, labels, placards or any mode of identification clearly legible to employees.

Placard identifiers

10 (1) For the purposes of this Section, "posting a placard" means posting a placard that

(a) discloses, subject to Sections 15 and 16, the information required on a workplace label;

(b) is of such size and in such a location that the information thereon is conspicuous and clearly legible to employees; and

(c) is in such a location as to be clearly referable to the controlled product to which it relates.

(2) Notwithstanding Sections 6, 7 and 8, an employer may fulfil the labelling requirements of Sections 6, 7 and 8 by posting a placard if the controlled product is

(a) not in a container;

(b) in a container intended for export; or

(c) in a container intended for sale or disposition and is to be appropriately labelled in the employer's normal course of business and without undue delay;

(d) in a container intended for use in the workplace and

(i) the container is consumed in a production process, and

(ii) subject to Sections 15 and 16, the container or the controlled product is identified through the use of colour coding, labels or any mode of identification clearly legible to employees.

(3) Notwithstanding Sections 7 and 8 and without limiting subsection (2), an employer may fulfil the labelling requirements of Sections 7 and 8 with respect to a container of a controlled product intended for use in a workplace by posting a placard if the employer ensures that

(a) the controlled product is located in an area to which the general public and unauthorized employees are not permitted access;

(b) the container of the controlled product is identified through the use of colour coding, labels or any mode of identification clearly legible to employees;

(c) subject to subsection (4), except where the controlled product is required for immediate use or where it is under the exclusive control of a single employee and is handled in accordance with Section 8(2)(b)(i) to (iii), the controlled product is not removed from the placarded area unless it first has a workplace label applied to it.

(4) Where a controlled product is moved directly and expeditiously from a container or source that complies with the labelling or placarding requirements of these regulations to an area where a placard is posted, notwithstanding Sections 7 and 8 the employer may, during the time that the controlled product is being moved, identify the controlled product through a combination of employee education and the use of colour coding, labels, placards, or any mode of identification clearly legible to employees.

Laboratory labels

11 (1) Where a controlled product

(a) originates from a laboratory supply house;
(b) is intended by the employer solely for use in a laboratory; and
(c) is packaged in a container in a quantity of less than 10 kilograms,

a label provided by the supplier and affixed to the container of the controlled product received at a workplace complies with the requirements of Section 6 with respect to a supplier label if it discloses, subject to Sections 15 and 16, the following information:

(d) a product identifier;

(e) where a material safety data sheet is available, a statement indicating that fact; and

(f) the following information that is applicable to the product:

(i) risk phrases,
(ii) precautionary measures, and
(iii) first aid measures.

(2) Where a sample of a product that is a controlled product or that a supplier or an employer has reason to believe may be a controlled product

(a) is contained in a container that contains less than 10 kilograms of the product;

(b) is intended by the supplier or the employer solely for analysis, testing or evaluation in a laboratory; and

(c) is one in respect of which the supplier is exempted by Section 9 of the Controlled Products Regulations from the requirement to provide a material safety data sheet,

a label provided by the supplier and affixed to the container of the controlled product received at a workplace complies with the requirements of Section 6 with respect to a supplier label if it discloses, subject to Sections 15 and 16, the following information:

(d) a product identifier;

(e) the chemical identity or generic chemical identity of any ingredient of the controlled product referred to in any of subparagraphs 13(a)(i) to (v) of the Hazardous Products Act, if known to the supplier or the employer;

(f) the supplier identifier;

(g) the statement "Hazardous Laboratory Sample - For hazard information or in an emergency call number disclosed under clause (h)";

(h) an emergency telephone number of the supplier that will enable

(i) a user of the controlled product to obtain hazard information in respect of the controlled product, and

(ii) a physician or nurse to obtain any information in respect of the controlled product that is referred to in paragraph 13(a) of the Hazardous Products Act and is in the possession of the supplier for the purpose of making a medical diagnosis of, or rendering treatment to, a person in an emergency.

(3) Where a controlled product is in a container other than the container in which it was received from a supplier, or is produced in the workplace, the employer is exempt from the requirement of Section 8 if the controlled product

(a) (i) originates from a laboratory supply house, or (ii) is a laboratory sample;

(b) is intended by the employer solely for use, analysis, testing or evaluation in a laboratory; and

(c) subject to Sections 15 and 16, is clearly identified through a combination of

(i) any mode of identification visible to employees at the workplace, and

(ii) employee education required by these regulations,

but the employer shall ensure that the mode of identification and employee education used enables the employees, subject to Sections 15 and 16, to readily identify and obtain either the information required on a material safety data sheet or a label or document disclosing the information referred to in subsection (2)(d) to (h), inclusive, with respect to the controlled product or the sample.

(4) Where a controlled product is produced in a laboratory, the employer is exempt from the requirement of Sections 7 and 8 if the controlled prHduct

(a) is intended by the employer solely for evaluation, analysis or testing;
(b) is not removed from the laboratory; and
(c) subject to Sections 15 and 16, is clearly identified through a combination of

(i) any mode of identification visible to employees at the workplace, and
(ii) employee education required by these regulations,

but the employer shall ensure that the mode of identification and employee education used enables the employees, subject to Sections 15 and 16, to readily identify and obtain either the information required on a material safety data sheet, if one has been produced, or such other information as is necessary to ensure the safe use, storage and handling of the controlled product.

Material safety data sheets

Supplier material safety data sheets

12 (1) An employer who acquires a controlled product for use at a workplace shall obtain a supplier material safety data sheet in respect of that controlled product.

(2) Where a supplier material safety data sheet obtained pursuant to subsection (1) in respect of a controlled product is three years old, the employer shall, if possible, obtain from the supplier an up-to-date supplier material safety data sheet in respect of any of that controlled product in the workplace at that time.

(3) Where the employer is unable to obtain a material safety data sheet as required by subsection (2), the employer shall add any new hazard information that is known to the employer and applicable to that controlled product to the existing supplier material safety data sheet on the basis of the ingredients disclosed in that document.

(4) The employer may make available for viewing at a workplace a material safety data sheet in a format different from the format provided by the supplier or containing additional hazard information or product identifiers if, subject to Sections 15 and 16,

(a) the material safety data sheet made available by the employer contains no less content than the supplier material safety data sheet; and

(b) the supplier material safety data sheet is available for viewing at the workplace and the material safety data sheet made available by the employer indicates that fact.

(5) Where a supplier is exempted by the Controlled Products Regulations from the requirement to provide a material safety data sheet for a controlled product, the employer is exempt from the requirement to obtain, prepare or make available a material safety data sheet for that controlled product.

(6) Subject to Sections 15 and 16, where a controlled product is received at a laboratory and the supplier has provided a material safety data sheet, the employer shall ensure that a copy of the material safety data sheet is readily available for viewing by the employees who may be exposed to the controlled product and by the joint health and safety committee, if any.

(7) Subject to Sections 15 and 16, where a controlled product is received or produced at a laboratory and the employer has produced a material safety data sheet, the employer shall ensure that the material safety data sheet is readily available for viewing by the employees who may be exposed to the controlled product, and by the joint health and safety committee, if any.

Employer material safety data sheets

13 (1) Where the employer produces a controlled product in the workplace, the employer shall prepare a material safety data sheet in respect of that product which discloses, subject to subsections (2) and (3), and to Sections 15 and 16, the information required under the Controlled Product Regulations.

(2) Where the chemical composition for a group of controlled products is similar, the employer may use a generic material safety data sheet for that group of products.

(3) Where a generic material safety data sheet is used and the hazard information in respect of a controlled product in the group is different from the hazard information in respect of the other controlled products in the group, the hazard information for that controlled product shall be disclosed on the material safety data sheet.

(4) Subsection (1) does not apply to the production of a fugitive emission or intermediate products undergoing reaction within a reaction or process vessel.

(5) An employer shall update the material safety data sheet referred to in subsection (1)

(a) as soon as practical but not later than 90 days after new hazard information becomes available to the employer; and

(b) at least every three years.

Availability of material safety data sheets

14 (1) Subject to Sections 15 and 16, an employer shall ensure that a copy of a material safety data sheet required by Section 12 or 13 is made readily available for viewing at a workplace in a physical form that can be handled

(a) at all times during their working hours, by employees who may be exposed to the controlled product; and

(b) by the joint health and safety committee, if any.

(2) Notwithstanding subsection (1) and Sections 12(6) and (7), the employer complies with subsection (1) and Sections 12(6) and (7) if the employer

(a) ensures that a material safety data sheet is made readily available for viewing on a video display terminal or a computer terminal in the workplace;

(b) takes every precaution that is reasonable in the circumstances to ensure that the terminal is in active working order; and
Clause 14(2)(b) erratum: O.I.C. 89-529, N.S. Reg. 64/89.

(c) ensures that a material safety data sheet in a physical form that can be handled is made available for viewing without unnecessary delay and within twenty-four hours if requested by an employee or a member of the joint health and safety committee, if any.

Confidential business information

Deletions, alternatives and medical emergencies

15 (1) Where an employer or supplier claims an exemption from a requirement to disclose information pursuant to the Disclosure of Information Regulations and [sub]section 61(1) of the Occupational Health and Safety Act, the employer or supplier may delete from any label, any supplier material safety data sheet, any material safety data sheet prepared or made available by the employer, any placard or any other identifier, the information that is the subject of the claim but may not delete hazard information.

(2) An employer or supplier who has deleted information from a label, material safety data sheet, placard or other identifier pursuant to subsection (1) shall replace that information with

(a) the words "trade secret"; and

(b) an emergency telephone number of the employer or supplier that will enable a treating physician or nurse to obtain information that is in the possession of the employer or the supplier respecting the specific chemical identity of the controlled product for the purpose of rendering medical treatment to a person in an emergency, in accordance with Section 3 of the Disclosure of Information Regulations.

(3) Where an employer or supplier claims an exemption under subsection (1), it shall not be necessary to claim an exemption under Section 16.

(4) If there is any conflict between the provisions of these regulations and the Disclosure of Information Regulations, the provisions of the Disclosure of Information Regulations shall prevail, but an employer may not delete hazard information from a label, placard, supplier material safety data sheet, a material safety data sheet prepared or made available by the employer.

16 (1) Where an employer or a supplier claims an exemption from a requirement to disclose information pursuant to this Section and to the Hazardous Materials Information Review Act, the employer or supplier may delete from any label, any supplier material safety data sheet, any material safety data sheet prepared or made available by the employer, any placard or any other identifier, the information that is the subject of the claim, but may not delete hazard information.

(2) An employer or supplier who is required, pursuant to these regulations, to disclose on any label, any supplier material safety data sheet, any material safety data sheet made available by the employer, any placard or any other identifier, an item of information referred to in paragraphs (a) to (d) of subsection (2) of Section 11 of the Hazardous Materials Information Review Act may, if the employer or supplier considers such information to be confidential business information, claim an exemption from the requirement to disclose that information; but if the employer or supplier has made a claim pursuant to Section 15, it shall not be necessary to claim an exemption under this Section.

(3) A claim under this Section shall be made to the Commission established under the Hazardous Materials Information Review Act and shall be filed in accordance with the procedure established under that Act and the regulations made thereunder and shall be finally determined by the Commission in accordance therewith, subject to the appeal procedures established under that Act.

(4) Pursuant to Section 32 of the Hazardous Materials Information Review Act, the Commission shall exercise the powers and perform the functions specified in that Act and the procedures prescribed by regulations under that Act in respect of a claim made under this Section.

(5) An employer or supplier who has deleted information from any label, material safety data sheet, placard or other identifier pursuant to subsection (1) of this Section shall replace the information with the date the claim for exemption was filed and the registry number assigned to the claim under the Hazardous Materials Information Review Act.

Confidentiality of information

Disclosure of information

17 (1) Where an official of the Occupational Health and Safety Division of the Department of Labour and Advanced Education obtains information pursuant to paragraph 46(2)(e) of the Hazardous Materials Information Review Act, the official to whom such information is communicated shall keep such information confidential and shall not disclose such information to any person except for the purposes of the administration or enforcement of the Occupational Health and Safety Act.
[Note: the Department name has been updated in accordance with Order in Council 2011-15 under the Public Service Act, R.S.N.S. 1989, c. 376, effective January 11, 2011.

(2) Any person to whom information is disclosed, pursuant to subsection (1), shall keep the information confidential.

18 No person shall use, disclose or release information protected as trade secret or confidential business information under these regulations except as provided by Sections 15(2)(b) and 17 of these regulations or by Section 6 of the Disclosure of Information Regulations.

Disclosure of data source

19 (1) Subject to Sections 15 and 16, an employer who produces a controlled product at a workplace shall, at the request of an officer as defined in the Occupational Health and Safety Act, an employee who may be exposed to the controlled product or the joint health and safety committee, if any, disclose the source of any toxicological data used in preparing the material safety data sheet required pursuant to Section 13.

(2) Subject to Sections 15 and 16, the employer shall ensure that a product identifier on a label corresponds with at least one product identifier on a material safety data sheet.

Transition period

20 (1) These regulations shall come into force on October 31, 1988.

(2) A controlled product received at a workplace before October 31, 1988

(a) shall bear a workplace label; and

(b) is exempt for one year from October 31, 1988 from the provisions of these regulations respecting supplier labels.

(3) A controlled product received at a workplace before October 31, 1988 is exempt for a period of 90 days from October 31, 1988 from the provisions of these regulations respecting supplier material safety data sheets

(a) if the employer is actively seeking by means of a written request to a supplier or other reasonable efforts to acquire a supplier material safety data sheet for the controlled product; or

(b) if a supplier material safety data sheet is not available, the employer is developing a material safety data sheet containing no less information than that required for a supplier material safety data sheet.

(4) A controlled product received at a workplace is exempt for a period of 90 days from October 31, 1988 from the provisions of these regulations respecting employee education.

21 (1) Notwithstanding Section 2, 6 or 12, but subject to subsection (2), the provisions of these regulations in respect of a supplier label and a material safety data sheet do not apply to a controlled product received in the workplace before March 15, 1989 if

(a) the sale of the controlled product is exempted by Sections 8.1 and 15.1 of the Controlled Products Regulations from the requirement to provide a supplier material safety data sheet and supplier label for the controlled product;

(b) the controlled product or the container of the controlled product bears a workplace label consistent with the information known to the employer at the time the controlled product is received at the workplace; and

(c) the employer uses a combination of employee education and any visible mode of identification that communicates to the worker that the product is

(i) a controlled product that has been received in the workplace before March 15, 1989 and

(ii) temporarily exempt from the requirement of Section 13 of the Hazardous Products Act with respect to the provision of a supplier label and supplier material safety data sheet.

(2) Where the sale of a controlled product is exempted by Section 8.1 and 15.1 of the Controlled Products Regulations from the requirement to provide a supplier material safety data sheet and supplier label, and where the controlled product is received at the workplace before March 15, 1989,

(a) the controlled product is exempt until October 31, 1989 from the provisions of these regulations respecting supplier labels; and

(b) the controlled product is exempt until June 15, 1989, from provisions of these regulations respecting material safety data sheets if, after March 15, 1989,

(i) the employer is actively seeking by means of a written request to a supplier or other reasonable efforts to acquire a material safety data sheet for the controlled product, or

(ii) a supplier material safety data sheet is not available, and the employer is developing a material safety data sheet containing no less information than that required for a supplier material safety data sheet.