In separate communications earlier this week, the Occupational Safety and Health Administration announced plans to conduct formal rulemaking to change the retail exemption to Process Safety Management (PSM), the Agricultural Retailers Association announced. 

In a letter to the District of Columbia Court of Appeals, which is handling litigation filed by the Agricultural Retailers Association and The Fertilizer Institute, OSHA stated it will establish a Small Business Regulatory Enforcement Fairness Act (SBREFA) panel, which is typically formed to evaluate the impact of regulations on small businesses.

OSHA also sent a letter to every Member of Congress announcing it was initiating rulemaking. The letter implored Congress "not to take further action that would limit the scope or applicability of the guidance during such time as OSHA conducts rulemaking."

In its letter to the court, OSHA indicated that the rulemaking process may take up to five years, but the memo remains in effect now, and the Agency still intends to enforce the re-interpretation beginning October 1, 2016, as they previously indicated.

In other words, the agency intends to enforce an amended regulation up to five years before they complete the legally-required rulemaking to establish it, and they would like Congress to not prevent them from violating the Administrative Procedures Act in this manner. 

OSHA's Congressional letter also repeated the fallacy that it is unable to regulate facilities that store and handle anhydrous ammonia or ammonium nitrate, when existing OSHA regulations provide the necessary authority for inspections of both products.

"ARA will be working with TFI to respond to both communications," said ARA President and CEO Daren Coppock. "It is baffling why OSHA continues to focus on regulating ammonia as its response to an ammonium nitrate incident at West Fertilizer, and has passed on industry offers to assist the agency in updating the 1910.109(i) regulation on storage and handling of AN."

The best news on this topic is that the court has agreed to the joint request of both parties to dispense with oral arguments and decide the case on the briefs that have been submitted. This should speed up the outcome considerably as well as limit legal fee costs to ARA and TFI.