September 18, 1995

Mr. David A. Bossman
President
American Feed Industry Association
1501 Wilson Boulevard Suite 1100
Arlington, Virginia 22209

Dear Mr. Bossman:

Thank you for your letter dated August 7 to Assistant Secretary Joseph A. Dear requesting that the Occupational Safety and Health Administration (OSHA) exempt animal feed ingredients from the requirements of 29 CFR 1910.1200, the Hazard Communication Standard (HCS). The reasons given by your organization for this exemption are that the HCS and the Food and Drug Administration's (FDA) regulations overlap, that requiring material safety data sheets (MSDS) for feed ingredients creates an administrative burden for industry, and that requiring MSDSs for nonhazardous materials actually deters worker health and safety.

Section 4(b)(1) of the Occupational Safety and Health Act of 1970 states that OSHA has jurisdiction over matters pertaining to worker safety or health unless another federal agency has exercised authority to prescribe or enforce standards affecting occupational safety and health with respect to a particular working condition. The FDA does not have regulatory authority over worker safety and health. OSHA has the authority and the HCS is an extension of that authority. FDA's interest in ingredients used in animal feeds is to prevent potentially harmful ingredients from reaching consumers by way of animals raised for food for humans. OSHA's interest is in protecting workers from exposure to harmful chemicals by informing them of the hazards and identities of the chemicals they are exposed to while working. OSHA provides an exemption to the labeling provisions of the HCS for products which are subject to the labeling provisions of FDA. An exemption is also provided for drugs, as defined by FDA, which are in "...solid, final form for direct administration to the patient (e.g., tablets or pills); drugs which are packaged by the chemical manufacturer for sale to consumers in a retail establishment (e.g., over the counter drugs); and drugs intended for personal consumption by employees while in the workplace (e.g., first aid supplies)...." {HCS, (b)(6)(vii)}. In these instances coverage is unnecessary, since exposure is unlikely.

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On the other hand, of the chemicals used as medical additives listed in 21 CFR 558.3, most are, it is assumed, in either solid or liquid form to facilitate blending with the feed to which they are being added. In these forms these chemicals present a potential exposure hazard to employees. For example, in a brief check of some of the chemicals listed as "Type A medicated articles", it was observed that some were truly hazardous: Arsanilic acid in contact with the skin may cause diarrhea and paralysis, long term eye contact may cause blindness, and ingestion may cause vomiting, bloody stool, and paralysis; Dichlorvos is flammable and is an International Agency for Research on Cancer (IARC) 2B carcinogen that is highly toxic; and Hygromycin B, in dust-air mixtures may ignite or explode. Employees need to, and have a right to, know that these hazards are present in their work environment.

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OSHA is aware of some of the problems caused by the widespread use of MSDSs for non-hazardous chemicals, including the examples you provide in your letter. In order to reduce the number of MSDSs, members of the American Feed Industry Association (AFIA) might instruct suppliers not to ship MSDSs with every shipment, as some do, and not to ship MSDSs for products which are not hazardous by OSHA definition. As to the deteriorating usefulness of MSDSs, an answer might be found in more effective training, and in filing the MSDSs by frequency of use or by degree of hazard so that employees are less likely to lose awareness of the hazards found in their work area. In any event, exempting an entire class of chemicals because of the number of MSDSs generated is not the answer to the problem. OSHA has recently requested that the National Advisory Committee on Occupational Safety and Health (NACOSH) establish a working group on hazard communication. The issues they will explore include how to simplify MSDSs, reduce the amount of required paperwork, increase the effectiveness of worker training, and revise enforcement policies to focus on the most serious hazards. If NACOSH recommends significant changes, the rulemaking process would begin, at which time the comments of your and other organizations and parties would be taken into consideration. Until such time as NACOSH has had an opportunity to complete the assigned task, it would be inappropriate to consider further exemptions to the HCS.

We hope this information will be helpful.

Sincerely,

Adam M. Finkel, Sc.D.
Director
Health Standards Programs

August 7, 1995

HAND DELIVERED

Mr. Joseph A. Dear
Assistant Secretary for
Occupational Safety and Health
200 Constitution Avenue, N.W.
Washington, D.C. 20210

Re: Request For The Exemption Of Animal Feed Ingredients From The Hazard Communication Standard, 29 C.F.R. 1910.1200

Dear Mr. Dear:

The American Feed Industry Association (AFIA) requests that the Occupational Safety and Health Administration (OSHA) exempt animal feed ingredients from the Hazard Communication Standard (HCS), 29 C.F.R. 1910.1200.

BACKGROUND

AFIA is the national trade association of manufacturers and distributors of animal feed, feed ingredients, animal health products, and feed manufacturing equipment. AFIA is comprised of 730 members who produce more than 70% of animal feed sold in the United States. While its members include large corporations, the majority are small family-owned businesses. Feed manufacturing typically involves combining raw agricultural products with byproducts, nutrients, and animal drug premixes (known as "Type A medicated articles," 21 C.F.R. 558.3(b)(2)). Thus, animal feed may contain a wide array of various ingredients such as corn, wheat, soybean meal, cottonseed meal, meat, bone, or feather meal, ground limestone, potassium chloride, salt-trace minerals, vitamins, and animal drugs. A feed mill obtains such ingredients from various sources. In addition, the same ingredient may be obtained from more than one supplier. For this reason, a typical batch of feed can include over 25 ingredients from over 50 sources. Because each supplier typically provides material safety data sheets (MSDSs) for each ingredient, the ingredients in a finished batch of feed can be covered by dozens of MSDSs. These MSDSs must then be indexed, filed, and made available by the feed manufacturer to employees who are potentially exposed.

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AFIA has been intimately involved with the HCS since its promulgation over a decade ago, and has actively participated in the rulemaking process. OSHA has agreed with many of AFIA's comments, and the agency has amended the HCS to include such improvements. Through the years, including extensive comments to OSHA regarding the HCS in 1982, 1987, and 1990, AFIA has urged the agency, among other things, to expand the exemptions contained in the HCS to exclude coverage of feed ingredients regulated by the Food and Drug Administration (FDA). AFIA has consistently maintained that requiring coverage of FDA-regulated ingredients does not contribute to worker health and safety, and it may even endanger workers.

REQUIRING MSDSs FOR FEED INGREDIENTS OVERLAPS WITH FDA REQUIREMENTS

The composition, quality, safety, and labeling of feed ingredients (including Type A medicated articles used to produce medicated feed), as well as the manufacturing of feed, are already regulated by FDA. The practical result of the requirements is that workers are protected from potentially dangerous substances.

OSHA, recognizing FDA's extensive regulation of food and drug products, has already provided certain exemptions from the HCS for FDA-regulated products. For example, OSHA has exempted foods sold, used, or prepared in retail establishments, as well as foods intended for human consumption in the workplace. 29 C.F.R. 1910.1200(a)(6)(vi). OSHA has also exempted from the HCS many FDA-regulated drug products. 29 C.F.R. 1910.1200(a)(6)(vii).

REQUIRING MSDSs FOR FEED INGREDIENTS CREATES AN ADMINISTRATIVE BURDEN FOR INDUSTRY

As noted previously, a feed manufacturer may use over 25 ingredients in a single feed. Because one ingredient may be provided by multiple suppliers, feed manufacturers may receive over 50 MSDSs just to manufacture a single feed. As a result, feed manufacturers often have MSDS files which fill several binders. The volume of MSDSs sent to feed manufacturers results in large part because suppliers avoid making "hazard" determinations and, instead, in an effort to ensure compliance with HCS and avoid corporate liability, send MSDSs for virtually everything. As a result, feed manufacturers must spend time and resources collecting and filing MSDSs rather than providing true improvements in the workplace for worker health and safety.

REQUIRING MSDSs FOR NONHAZARDOUS MATERIALS ACTUALLY DETERS WORKER HEALTH AND SAFETY

As the number of MSDSs received by feed manufacturers continues to increase beyond manageability, their usefulness deteriorates. Because workers know that MSDSs cover products which are not truly "hazardous," workers no longer take MSDSs seriously. This could potentially harm workers who, to avoid the inconvenience of reviewing unnecessary MSDSs, avoid reviewing any MSDSs -- even for truly "hazardous" chemicals used in plant maintenance. By exempting feed ingredients (including Type A medicated articles) from the HCS, many unnecessary MSDSs would be removed from the currently voluminous files. This would encourage workers to seek information from the remaining MSDSs, with the knowledge they are likely to concern truly "hazardous" substances.

CONCLUSION

Feed manufacturers presently receive MSDSs from many suppliers, and they are required to index, file, and make available all MSDSs to employees who are potentially exposed. Because suppliers are generating MSDSs for virtually all feed ingredients without making "hazard" determinations, the MSDS files continue to expand beyond their usefulness. Feed ingredients (including Type A medicated articles) are already covered by FDA requirements. In addition, the number of MSDSs generated for these products creates an administrative burden on feed manufacturers, who could better spend their time and resources on true safety and health issues. Moreover, the flood of MSDSs on file actually hurts worker health and safety because workers do not take MSDSs seriously. For these reasons, AFIA requests that OSHA exempt feed ingredients (including Type A medicated articles) from the HCS. AFIA requests an opportunity to meet with you to discuss this important issue. We will contact your office to schedule a meeting at a mutually convenient time. We appreciate your attention to this important matter. Sincerely, David A. Bossman President

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