In September 2016, the U.S. Circuit Court of Appeals for the District of Columbia decided that a 2015 OSHA interpretation letter regarding the scope of the Process Safety Management (“PSM”) exemption for the agricultural retailers, was a standard subject to “notice and comment” requirements. So, what does this mean for OSHA?

Well, this landmark decision will allow for some exploration into questions of agency interpretation regarding standards and employers can now challenge OSHA interpretations if they do not follow the traditional rulemaking steps. Historically, OSHA issued letters of interpretation in response to questions from employers or unions seeking clarification, but in recent years the agency has used these guidance and interpretation letters to side-step the Occupational Safety and Health Act (“OSH Act”) rulemaking processes that are costly and time consuming procedures and evidentiary requirements. Employers complained mightily about OSHA’s use of interpretations that looked and felt like new regulatory requirements and they didn’t like how these new requirement would suddenly appear on OSHA’s website with no notice or opportunity to comment. So, big win for OSHA-regulated employers. Although some employers probably will wish this handy regulatory shortcut remained available for President Trump and his deregulatory agenda.

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