Appeals Panel Wrong on Safety Guidance, U.S. Petition Says

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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 spearson@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

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