October 28, 1996

Brian L. Bursiek, Director
Feed Production AFIA
American Feed Industry Association
1501 Wilson Boulevard
Suite 1100
Arlington, Virginia 22209

Dear Mr. Bursiek:

This is in response to your June 27, letter concerning the Occupational Safety and Health Administration's (OSHA) Hazard Communication Standard (HCS) requirements for Material Safety Data Sheets (MSDS). For your information, the National Advisory Committee on Occupational Safety and Health (NACOSH) HazCom Workgroup issued its findings in Report to OSHA on Hazard Communication, September 12 (enclosed). Your letter sought compliance interpretation in two areas the first issue questioned whether a plant manager is required to retain MSDSs simply because it was sent to him or her, or can professional judgement be used to remove unnecessary MSDSs from the file. The second issue requested an interpretation on the use of facsimile transmissions to further reduce the number of MSDS files maintained by a company with multiple plant locations.

MSDSs that represent non-hazardous chemicals are not covered by the HCS. Paragraph 29 CFR 1910.1200(g)(8) of the standard requires that "the employer shall maintain in the workplace copies of the required MSDSs for each hazardous chemical, and shall ensure that they are readily accessible during each work shift to employees when they are in their workarea(s)." OSHA does not require nor encourage employers to maintain MSDSs for non-hazardous chemicals. Consequently, an employer is free to discard MSDSs for non-hazardous chemicals.

In terms of an effective solution, I agree with Dr. Finkle's recommendation that your members inform their suppliers that they do not wish to receive MSDSs for non-hazardous chemicals. Obviously, once your suppliers send out MSDSs, your members have the burden to review and discard the unnecessary MSDSs.

In response to your second question, OSHA has stated in a parenthetical note to paragraph 1910.1200(g)(8) of the HCS 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 in each workplace are created by such options.)" A company with multiple plant locations could use a facsimile to transmit MSDSs to employees as one means of complying with the standard. OSHA has always allowed microfiche, computers or FAX to be used for MSDS transmission. As you may be aware, the HCS has frequently been characterized as a performance oriented standard. If an employer chooses an electronic system, employees must be trained on how they will access the information and the employer must integrate the system into their overall hazard communication program. Whether the employer selects a system that involves an automated centerlized database or simply having paper copies of MSDSs distributed in each workarea, the key to compliance with the HCS is that there are no barriers to immediate employee access in each workplace created by these options.

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In you letter, you inquired how soon must the facsimile transmission occur for compliance?

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OSHA has not established minimum requirements for determining whether MSDSs maintained at the worksite are readily accessible to employees while they are in their workareas. OSHA has provided the following guidance to its compliance officers in the October, 1990 compliance directive CPL 2-2.38C: "Factors that may be appropriate to consider when determining if MSDSs are readily accessible may include: Must employees ask a supervisor or other management representative for the MSDS? Are the sheets or alternative methods maintained at a location and under conditions where employees can refer to them during each work shift, when they are in their work areas? If a computer or FAX system is used, do employees know how to operate and obtain information from the system? Employees must have access to the MSDSs and be able to get the information when they need it, in order for an employer to be in compliance with the rule." Employees must have access to the MSDSs and be able to get the information when they need it. This may be accomplished in many ways and requires the compliance officer to exercise professional judgement in evaluating the accessibility of the MSDSs on-site. As a final note, the system that is selected should be reliable. This means that employers should provide a backup computer system when the main system is down for short periods of time for maintenance, repair, or power disruption. Either providing a backup system to your main computer and facsimile equipment or printing a hard copy set of MSDSs before shutting down the system would meet the standard's intent.

Thank you for your interest in occupational safety and health. Should you have additional concerns please contact Tom Galassi of my staff at (202) 219-8036 ext. 46.

Sincerely,

Ruth McCully, Director
Office of Health Compliance Assistance

Enclosure

June 27, 1996

Ms. Ruth McCully, Director
Office of Health Compliance and Assistance
Dept. of Labor
Occupational Safety and Health Administration
200 Constitution Ave.
Washington, D.C. 20210

Dear Ms. McCully:

I attended the NACOSH HAZCOM meeting on June 12, 1996, where you addressed compliance issues. I learned a few things regarding HAZCOM compliance, as many did, and am writing today seeking additional interpretations, and ways companies can alleviate the massive paperwork burden HAZCOM has brought upon them.

AFIA is the national trade association of manufacturers and distributors of animal feed, pet food, feed ingredients, animal health products, and feed manufacturing equipment. AFIA has 730 members which produce more than 70% of animal feed sold in the U.S. While its members include large corporations, the majority are small family-owned businesses.

AFIA has been actively involved with HAZCOM since its promulgation over a decade ago. Recently, AFIA testified in front of the NACOSH Workgroup recommending areas of needed change for regulatory relief. AFIA's concerns, then and now, center on the fact many suppliers generate MSDSs for products which are not truly hazardous.

Before OSHA acts on any NACOSH recommendations, AFIA seeks compliance interpretation in two areas. First, is a plant manager required to retain an MSDS simply because it was sent to him or her, or can professional judgement be used to remove unnecessary MSDSs from the file? Second, AFIA seeks interpretation on the use of facsimile transmissions to further reduce the number of MSDS files maintained by a company with multiple plant locations.

Prioritizing Hazards

First, please refer to the enclosed AFIA letter to Joe Dear dated Aug. 7, 1995. AFIA explains how, in many case, feed industry plant managers come to posses MSDSs for substances which AFIA feels are not hazardous. In an effort to comply with HAZCOM, many suppliers generate MSDSs without conducting hazard determinations. The net result is volumes of needless MSDSs which HAZCOM dictates be indexed, filed, and made available to employees. AFIA contends this massive overload actually reduces worker health and safety because workers do not take MSDSs seriously.

Also enclosed please find a letter from Mr. Adam Finkel, Director, Health Standards Programs. In the second paragraph on the second page, Mr. Finkel attempts to address AFIA's concern of too many MSDSs generated for non-hazardous items, and suggests a solution. He suggests companies instruct suppliers to not send MSDSs for products which are not hazardous by OSHA definition, and to file MSDSs based on the degree of hazard. In looking at the NACOSH draft report dated June 11, 1996, the third recommendation suggest one possible fix: check a statement on the front page of an MSDS if a product comes under Hazard Communication regulations. In the meantime, what further advice can you give companies sorting out or distinguishing non-hazardous from hazardous, and the varying degrees of risk any particular product may pose? Will OSHA allow a plant manager to use his or her professional judgement in determining which MSDSs to prioritize, which to provide training, and which to discard as not posing a hazard to employees? Any interpretation or guidance you can provide in helping to alleviate the volumes of MSDSs needed for indexing and filing will be appreciated.

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Electronic Transfer

A point which was discussed at length during your report to the workgroup dealt with the meaning of "readily accessible". As you are aware, the workgroup draft report includes a recommendation for the use of electronic access to MSDSs in lieu of paper copies kept at the worksite. As this point was discussed, there appeared to be no clear consensus as to the timeframe required to make MSDSs available to an employee. You indicated OSHA's current enforcement policy requires employee access during the current work shift.

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AFIA believes there can be significant reductions in the paperwork burden associated with HAZCOM if paper copies are not required to be filed at the worksite. One option, as discussed by the workgroup, is the use of an off-site MSDS management service via an on-line terminal. This could save money and time, but could add additional expense in the form of subscriptions and employee training. An end-user should not have to pay for this information, but it is an option. The use of facsimile transmissions was also mentioned as a tried-and-true method of providing MSDSs upon request. AFIA requests interpretation on the use of facsimile transmissions. If a corporation with multiple manufacturing locations maintains one master set of MSDSs at its company headquarters, will OSHA allow facsimile transmissions of MSDSs to its branch locations to satisfy requests for information? How soon must that transmission occur for compliance?

AFIA applauds the NACOSH Workgroup for its efforts in recommending needed changes to OSHA's Hazard Communication Standard. However, it is unclear how soon these recommendations will be adopted. AFIA member companies need relief from the administrative burdens of HAZCOM, and your interpretive guidance on the two issues of assessing true hazards and electronic transfer can go a long way in reducing those burdens. These two mirror areas of needed change as recommended by the NACOSH Workgroup.

AFIA looks forward to your interpretations, and is willing to meet with you to discuss any of our concerns.

Sincerely,

Brian L. Bursiek, Director
Feed Production
AFIA