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Archive Notice - OSHA Archive

NOTICE: This is an OSHA Archive Document, and may no longer represent OSHA Policy. It is presented here as historical content, for research and review purposes only.

OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at http://www.osha.gov.

May 2, 1989

Mr. Louis R. Marchese
Halfpenny, Hahn, Roche & Marchese
20 North Wacker Drive
Chicago, Illinois 60606

Dear Mr. Marchese:

This is in response to your letter of January 11, concerning the consumer product exemption under the Occupational Safety and Health Administration's (OSHA) Hazard Communication Standard (HCS).

The Office of Management and Budget (OMB) approved all but three of the requirements of the HCS to meet the provisions of the Paperwork reduction Act. These three requirements are: 1) the requirement that material safety data sheets be provided on multi-employer worksites: 2) the coverage of any consumer product that falls within the "consumer product" exemption included in Section 311(3) of the Superfund Amendments and Reauthorization Act of 1986; and 3) the coverage of any drugs regulated by the Food and Drug Administration in the nonmanufacturing sector.

On August 19, 1988, the United States Court of Appeals for the Third Circuit ruled that OMB had exceeded its authority, under the Paperwork Reduction Act, in disapproving the three provisions of the expanded HCS. The court ordered OSHA to "publish in the Federal Register a notice that those parts of the August 27, 1987, Hazard Communication Standard which were disapproved by OMB are now effective." On September 2, 1988,the Department of Justice filed a petition for rehearing with a suggestion for rehearing by the entire third Circuit Court of appeals. The Court of Appeals denied the petition for rehearing (November 29, 1988), as well as requests for stay of the decision. In addition, a further motion by industry representatives for a stay of the decision was denied on January 24, by the U.S. Supreme Court Justice Brennan, and on February 17, by the full Court on reconsideration. The Solicitor general has filed a petition for a writ of certiorari on behalf of the government in the United Steelworkers case. Industry representatives also petitioned the Supreme Court for writs of certiorari in both the United Steelworkers case and in Associated Builders land Contractors, in which industry challenged the validity of the standard's application to nonmanufacturing employers. Those requests are pending. If certiorari is granted, the Supreme Court may ultimately decide the enforceability of these provisions.

However, the Third Circuit's decision became effective January 30 of this year and OSHA complied with the Third Circuit order by publishing a notice in the Federal Register on February 15 announcing the effectiveness. All provisions of the HCS are now effect in all industries.

Consequently, statements in the OSHA Instruction CPL 2-2.38B regarding the exemption of all consumer products are no longer applicable.

Under the current rule, whenever a consumer product is not used in a manner similar to that of normal consumer use, resulting in a duration and frequency of exposure greater than consumers experience, the product is covered by the HCS.

We hope this adequately responds to your concerns. If we can be of further assistance to you, please do not hesitate to contact us.


Patricia K. Clark, Acting Director Directorate of Compliance Programs


Archive Notice - OSHA Archive

NOTICE: This is an OSHA Archive Document, and may no longer represent OSHA Policy. It is presented here as historical content, for research and review purposes only.