Regulatory Developments

PSM Retail Exemption Update

A little over a year ago, OSHA issued a memorandum revising the agency’s interpretation of the PSM standard’s retail facility exemption.  However, on September 23, 2016, the U.S. Court of Appeals for the D.C. Circuit vacated the agency’s revised interpretation.

Over the years, agency letters of interpretation had expanded the scope of the exemption, but all of those interpretations were rescinded, and, as outlined in the memorandum, OSHA intended to interpret the retail facility exemption as applying to facilities engaged in retail trade as defined by the current and any future updates to sectors 44 and 45 of the North American Industry Classification System (NAICS) manual.

According to the Court, any action by OSHA that corrects a particular hazard, as opposed to adjusting procedures for detection or enforcement, amounts to a “standard,” and all standards are subject to public notice and comment procedures.  The Court ruled that OSHA’s narrowing of the scope of the exemption for retail facilities qualified as issuance of a standard, and therefore vacated OSHA’s revised interpretation because the agency failed to adhere to public notice and comment procedures.