May 27, 2018
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PSM “Retail Exemption” in Farm Bill May Fall Victim to Politics

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In an April 30th memorandum to Regional Administrators, Tom Galassi (Director for OSHA’s Directorate of Enforcement Programs) announced that OSHA’s process safety management (PSM) standard, which establishes requirements for preventing or minimizing explosion hazards related to chemicals, did not apply to “retail facilities.” This had previously been at the center of debate in a 2016 case before the DC Circuit Court of Appeals, Agricultural Retailers Ass’n V. US Dep’t of Labor, where the Court struck down the definition of “retail” provided by OSHA in a memorandum.  837 F.3d 60 (D.C. Cir. 2016).

Galassi’s recent memo states:

In light of the D.C. Circuit’s decision, the following PSM enforcement policy guidance applies:

OSHA will not issue citations under the PSM standard for employers in the following North American Industry Classification System (NAICS) codes:

424510 – Grain and Field Bean Merchant Wholesalers

424590 – Other Farm Product Raw Material Merchant Wholesalers

424910 – Farm Supplies Merchant Wholesalers

The retail exemption is based on the belief that these businesses do not handle chemicals in large volumes and, therefore, do not pose a high risk of hazardous release. However, those who are exempted are still expected to comply with other OSHA regulations, such as the storage and handling of chemicals.

The ARA’s (Agricultrual Retailers Association) continued push to have the retail exemption permanently written into the Farm Bill is now caught up in politicking. The bill failed in the House last week, 198-213.  Democrats opposed President Trump’s proposed stricter work requirements for food stamp recipients while the Republican Freedom Caucus “held the bill hostage, demanding that the House first vote on controversial immigration legislation in exchange for their support” (Politico).

The Senate, meanwhile, is working on a bipartisan Farm Bill but it is unknown if the PSM retail exemption will or will not be included in that bill.



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