Washington—The Occupational Safety and Health Administration (OSHA) on May 6 informed Congress that it intends to conduct formal rulemaking to change the retail exemption to its Process Safety Management (PSM) standard. In a separate letter to the District of Columbia Court of Appeals, which is handling litigation filed by the Agricultural Retailers Association (ARA) and The Fertilizer Institute (TFI) challenging the revised retail exemption, OSHA said it will establish a Small Business Regulatory Enforcement Fairness Act (SBREFA) panel to evaluate the impact of the regulation on small businesses, and that it may take up to five years for the rulemaking process to be completed. OSHA also informed Congress that it intends to enforce the existing Oct. 1, 2016, deadline for compliance with the revised PSM retail exemption while the rulemaking process is underway, and asked Congress to “not take further action that would limit the scope or applicability of the guidance during such time as OSHA conducts rulemaking.” ARA said it would work with TFI to respond to both communications, but said it was baffled that OSHA would attempt “to enforce an amended regulation up to five years before they complete the legally-required rulemaking to establish it,” while also imploring Congress “to not prevent them from violating the Administrative Procedures Act in this manner.” ARA also reported that the Court of Appeals has agreed to a joint request to dispense with oral arguments in its legal challenge to the revised PSM exemption, and instead decide the case based on the briefs that have been submitted. ARA said this decision would speed up the outcome considerably and limit legal fee costs to ARA and TFI.
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