The Occupational Safety & Health Reporter™ provides complete news coverage and documentation of federal and state occupational safety and health programs, standards, legislation, regulations,...
By Sam Pearson
Nov. 8 — Federal attorneys asked the U.S. Court of Appeals for the District of Columbia Circuit to take another look at OSHA guidance narrowing the scope of exemptions to the agency’s process safety management regulations ( Agricultural Retailers Assoc. v. DOL , D.C. Cir., No. 15-01326, 9/23/16 ).
In a petition for review filed Nov. 7, the Occupational Safety and Health Administration and the Department of Labor requested an en banc rehearing of a decision by a unanimous three-judge panel on the guidance.
In a ruling Sept. 23, Judge Sri Srinivasan of the D.C. Circuit agreed with petitioners, the Agricultural Retailers Association and The Fertilizer Institute, that OSHA’s changes to the regulation through guidance that narrowed the scope of exemptions required a rulemaking under the Occupational Safety and Health Act.
The panel “significantly erred” in its decision, the petition claimed.
The agency argued the judges incorrectly found the guidance constituted an interpretive rule under the Administrative Procedure Act. The court later ruled the guidance constituted an OSHA standard, contrary to Supreme Court precedent on the legal effect of interpretive rules.
“Interpretive rules—unlike legislative rules like OSHA standards—do not have the force and effect of law, and OSHA’s interpretation of its standard could not have modified the standard itself,” the petition said.
In addition, the petition said the ruling incorrectly assumed OSHA lacked the ability to issue interpretive rules under the Administrative Procedure Act because the OSH Act did not provide for the possibility.
The decision could bring “a significant disruption of longstanding practices benefiting the public and the regulated community,” the petition warned, by limiting OSHA’s ability to interpret standards.
To contact the reporter on this story: Sam Pearson in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: Larry Pearl at email@example.com
The filing is available at http://www.bloomberglaw.com/public/document/Agricultural_Retailers_Assoc_et_al_v_LABR_et_al_Docket_No_1501326/7.
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)