June 6, 2016

Dear SER,

	As discussed on page 78 in the PSM SBREFA Background Document, the Panel   is interested in receiving feedback on the issue of the Occupational Safety and Health Administration's (OSHA's) recent interpretation of the retail exemption clause in the PSM standard. This information is being provided to further your review of the PSM SBREFA package you recently received.  
	Specifically, OSHA is considering the addition of language to the standard to codify the scope of the retail facilities exemption, 29 CFR 1910.119(a)(2)(i). This language would add to the standard OSHA's current interpretation (dated July 22, 2015), which limits the exemption to facilities, or the portions of facilities, engaged in retail trade as defined by the current and any future updates to sectors 44 and 45 of the NAICS Manual. As explained in OSHA's July 22, 2015, memorandum to the field, OSHA's current interpretation restores the exemption to its originally intended scope, and revokes previous interpretations that looked at the percentage of income derived from the sales of highly hazardous chemicals to end users (OSHA, 2015).
	OSHA believes that many facilities operating processes now subject to the PSM regulation due to this interpretative change were already covered under EPA's RMP Program 2.  RMP Program 2 requires eight somewhat less stringent requirements than PSM. OSHA has made preliminary estimates of the percentage of the total costs of bringing a completely new facility into PSM compliance that would be incurred if, in fact, the facility was currently in compliance with RMP Program 2 requirements. the Panel is interested in comment on the accuracy of these estimates. Overall, the Agency estimates that the typical firm in this RMP Program 2 population would have already met about 55% of the "from scratch" total costs. PSM elements where full costs would be incurred are: employee participation plan, contractor provisions, pre-startup review, hot work, and management of change. The Panel welcomes comments on these estimates and all aspects of the costs of bringing an RMP Program 2 facility into PSM compliance. Specifically please consider the following questions:
   1. If your process is subject to PSM by the new retail interpretation, what PSM-related fatalities, injuries, releases, and loss of primary containment have occurred previously at your facility?   Would following PSM requirements for those processes have prevented those injuries and fatalities?
   2. OSHA considered that the incremental costs to facilities operating PSM-covered processes because of the new retail exemption interpretation would be modest because they would already have to comply with many of the same requirements under EPA RMP Program 2.  Do you agree?  If not, please indicate what new costs would be incurred by your facility to comply with PSM that is not currently required by EPA RMP Program 2, and provide an estimate of each such cost.  Are there any special circumstances specific to small entities the Panel should consider with respect to this issue?
   3. The Panel welcomes comments on all aspects of unit costs for the processes covered by PSM under the new interpretation of the retail exemption, and suggestions of other alternatives that would achieve OSHA's objectives while minimizing the costs to small entities.

Sincerely yours,
					Robert Burt
					Chair, Small Business Advocacy Review Panel								Occupational Safety and Health Administration

cc:	Bruce Lundegren, SBA Office of Advocacy
	Cortney Higgins, OMB

OSHA, 2015. Occupational Safety and Health Administration. Process Safety Management of HighlyHazardous Chemicals and Application of the Retail Exemption (29 CFR 1910.119(a)(2)(i)), OSHA memo, July 22. Available at: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=29528.
