Retailers Encouraged to Prepare for PSM Compliance

Agricultural Retailers Association and The Fertilizer Institute

On Dec. 23, 2015, the Occupational Safety and Health Administration (OSHA) issued a revised Interim Enforcement Policy on its website, addressing enforcement of Process Safety Management (PSM) requirements for agricultural retailers. These facilities became newly subject to the PSM standards pursuant to a prior OSHA enforcement memorandum, dated July 22, 2015.

The revised policy is the result of language included in the Joint Explanatory Statement, which accompanied the FY2016 Omnibus Appropriations Bill.

The language specifically prohibits OSHA from enforcing or implementing its July 22, 2015, memorandum until:

1. The Census Bureau creates an agricultural retail NAICS code, and
2. OSHA goes through formal notice and comment rulemaking.

However, the appropriations bill is only effective through the end of the federal fiscal year, which ends Sept. 30.

OSHA narrowly interpreted the Joint Explanatory Statement, indicating that they expect retailers to be in compliance with the PSM requirements on Oct. 1.

At this time, it appears OSHA does not intend to conduct formal rulemaking and is, in effect, taking the position that this Congressional directive need not be followed after the current fiscal year ends.

ARA and TFI worked together on the language in the explanatory report and will seek inclusion of similar language in legislation for the next federal fiscal year. At an absolute minimum, we believe the agency must go through formal rulemaking before imposing this significant regulation on thousands of retailers.

We continue to advocate that OSHA adhere to the intent of Congress and go through a full notice and comment rulemaking, and we are pursuing this through both legislative and judicial means; however, we cannot be sure of the outcome.

Therefore, we urge retailers to consider how they will comply with PSM if no further relief is granted.