Court denies OSHA’s request for a rehearing on PSM retail policy

OSHA may not enforce 2015 memorandum

Posted December 22, 2016

On December 20, 2016, the U.S. Court of Appeals for the District of Columbia Circuit denied OSHA’s request for a rehearing in a case against OSHA’s change of policy regarding the retail exemption in its Process Safety Management of Highly Hazardous Chemicals standard (PSM).

In 2015, OSHA changed its stance toward the retail exemption in the PSM standard. Until that time, the term “retail” under PSM applied to facilities that obtain more than half of their income from direct sales to end users. However, in a July 2015 memorandum, OSHA changed the policy to define “retail” as only those facilities listed as having NAICS codes 44 and 45. This led to a large number of businesses that had previously been classified as retail facilities now being subject to the PSM standard.

Retailers sued OSHA over the change in policy through a memorandum rather than through the formal rulemaking process and the Court vacated the memorandum.

Agricultural Retailers Association et al. v. United States Department of Labor and OSHA (Case Nos. 15-1326 and 15-1340)

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