VIA ELECTRONIC FILING
May 5, 2016
Mark J. Langer, Clerk
The United States Court of Appeals
District of Columbia Circuit
333 Constitution Ave., NW
Washington, DC 20001
Re. 28(j) Letter – Agricultural Retailers Association, et al. v. United States Department of Labor, et al., Nos. 15-1326 and 15-1340
Dear Mr. Langer:
Respondents write to advise the Court that earlier today OSHA initiated Small Business Regulatory Enforcement Fairness Act proceedings, the first step in a comprehensive rulemaking to update its 20-year-old Process Safety Management (PSM) Standard (see attached representative letter to Mr. Auger). As part of this rulemaking, OSHA is considering whether to codify its current interpretation of the term “retail,” i.e., the interpretation contained in the July 22, 2015, memorandum that is the subject of this litigation, in the text of the PSM Standard.
For the reasons explained in Respondents’ Brief, the interpretation of “retail” adopted in the challenged memorandum is an interpretive rule (not an OSHA standard), so it is not subject to pre-enforcement judicial review in this Court and need not be issued in accordance with the rulemaking requirements of the Administrative Procedure Act or the OSH Act. Nothing, however, precludes OSHA from codifying its interpretation through rulemaking, cf. 80 Fed. Reg. 25365, 25420 (May 4, 2015) (adopting an interpretation of Confined Spaces Standard
for General Industry in the analogous provision of Confined Spaces in Construction Standard); 79 Fed. Reg. 20315, 20506-07 (April 11, 2014) (codifying longstanding enforcement policy in text of electrical standard), nor does the commencement of rulemaking moot the present proceedings.
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USCA Case #15-1326 Document #1612026 Filed: 05/05/2016 Page 2 of 3
OSHA is proposing to address the retail interpretation as part of the comprehensive PSM rulemaking for reasons unrelated to the legal validity of the current interpretive memorandum. This action is consistent with Congressional report language indicating a preference for rulemaking on this interpretation.1 Also, by codifying its interpretation of “retail” in the standard, OSHA can ensure that it has the force and effect of law and cannot be challenged on reasonableness grounds in individual enforcement proceedings.
The memorandum at issue, in this case, will remain in effect (subject to an enforcement delay through September 30, 2016) while OSHA proceeds with the PSM rulemaking, which may take more than five years to complete. The memorandum serves the important function of advising the public of how OSHA will enforce the standard in the interim period before the Agency completes rulemaking.
Respectfully submitted,
/s/ Lauren Goodman
Lauren Goodman
Attorney, SOL/OSH
U.S. Department of Labor
200 Constitution Ave., NW, Rm. S-4004
Washington, DC 20210
Tel: (202) 693-5446
FAX: (202) 693-5466
E-mail: [email protected]
Counsel for Respondents
cc: All Counsel of Record
1 Available at https://www.congress.gov/congressional-record/2015/12/17/housesection/article/H10161-1.
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