For magicians, misdirection is the key to a successful illusion. And, although fooled by the distraction, the audience responds with awe and applause.
However, when it comes to the Occupational Health and Safety Administration's latest trick, the Agricultural Retailers Association is not amused.
On May 6, OSHA sent a letter to Congress and the U.S. Court of Appeals for the District of Columbia indicating the agency is "considering" initiating rulemaking to apply the Process Safety Management standard to farm supply retailers. Moreover, until the rule is complete, OSHA said it will enforce the PSM standard.
"Apparently, OSHA has come to the conclusion that rulemaking is necessary," said Daren Coppock, President and CEO of the Agricultural Retailers Association. "But the agency still clearly indicates it intends to commence enforcement of the PSM standard on agricultural retailers beginning October 1, 2016, even though, by its own admission in a letter to the D.C. Circuit Court, the rulemaking may take as long as five years."
OSHA issued a memo July 22, 2015, that reinterpreted the long-standing "retail exemption" to PSM and gave agricultural retailers just six months to comply with the complex and time-intensive regulation. Since then, OSHA has insisted -- even in testimony to Congress -- that rulemaking was unnecessary and it acted appropriately when the agency abruptly changed its guidance on PSM. Now, OSHA has told Congress and the Courts to look the other way as it improperly enforces PSM until rulemaking is completed.
"The agency is, in effect, hoping Congress and the federal judiciary are distracted by the rulemaking while it continues to violate the Occupational Safety and Health (OSH) Act and the Administrative Procedures Act by imposing an unlawful regulation that has not completed rulemaking procedures," Coppock said.
On Friday, ARA sent a letter to members of Congress to clear up OSHA's misinformation. The letter asks members to hold OSHA accountable to Congressional intent expressed in the 2016 Omnibus Appropriations Bill and force the agency to pursue proper notice-and-comment rulemaking procedure.
"Surely the Congress does not intend to give regulatory agencies the authority to change their regulations on a whim and then complete the necessary rulemaking procedures years after commencing enforcement," the letter states.
ARA is calling on Congress to pass H.R. 5213, the recently introduced Fertilizer Access and Responsible Management (FARM) Act, and/or include language in the fiscal 2017 appropriations bills that would prevent OSHA from enforcing the PSM standards on agricultural retailers.
"OSHA's refusal to follow proper procedure, its misplaced and counterproductive regulatory proposal to apply PSM to ammonia retailers in response to an ammonium nitrate incident, its desire to amend and enforce a rule before commencing or completing rulemaking and its misinformation campaign (via the May 6 letter) are compelling reasons why [ARA is] asking for your support in retaining language from the 2016 Omnibus Appropriations report language in the fiscal 2017 appropriations bills," Coppock states in the letter. "To make sure OSHA is held accountable, the language needs to be in the statute rather than report language to ensure the agency complies with duly enacted statutes, Congressional intent and federal regulations."
With support from key leaders in the House and Senate, ARA is hopeful Congress will not be sidetracked by OSHA's misinformation.
"OSHA ignored federal statute requiring major regulatory actions to be published for public input," said Rep. Adrian Smith (R-Neb.). "Retailers and producers should be given the opportunity to voice their concerns and share their expertise through the formal rulemaking process rather than having yet another unilateral regulation forced upon them by this administration."
Smith along with co-sponsors Rep. Collin Peterson (D-Minn.), Rep. Stephen Fincher (R-Tenn.), and Rep. Jim Costa (D-Calif.) introduced the FARM Act legislation Thursday, which would revoke OSHA's reinterpretation of the retail exemption.
PSM impacts farm supply retailers who store and handle anhydrous ammonia, a fertilizer commonly used by farmers. Early industry estimates suggested PSM compliance costs would be at least $20,000 per facility, 10 times the cost-estimate put forth by OSHA. Retailers who have begun compliance say total costs could more than $100,000 per facility, including capital improvements and ongoing maintenance. Although many retailers are already making the investments in compliance, others will exit the business, which will push storage to the farm, where it's unregulated, and increase transportation distances on rural roads. All those cost factors increase the price of nutrients for farmers.
"The agency's letter ignores the commitment to safety and security by our industry through initiatives such as ResponsibleAg and the Fertilizer Safety and Health Partnership Alliance. It dismisses the culture of safety developed by our member companies that produce, distribute and sell fertilizer products," Coppock said. "We were compelled to send this letter to set the record straight."