OSHA authority

By: Peggy Kirk Hall, Friday, August 01st, 2014

The Occupational Safety & Health Administration (OSHA) faced harsh criticism recently when the agency inspected and issued fines to small farms engaged in grain storage activities.  The farms argued that OSHA had no authority to do so because of the "small farm exemption" that limits OSHA’s authority to enforce safety regulations on small farms.  This week, OSHA released a guidance memorandum that attempts to clarify how its regional administrators should interpret the small farm exemption.  The agency's new guidance focuses on whether an activity on a small farm is “not related to farming operations and not necessary to gain economic value from products produced on the farm.”

The small farm exemption and OSHA's earlier interpretation

Since 1976, Congress has prohibited OSHA from using any of its funds to enforce safety regulations on "small farms," those farm operations that employ 10 or fewer employees and do not maintain a temporary labor camp.  In recent years, however, the agency turned its regulatory attention to grain operations on small farms.  OSHA justified its inspections and enforcement actions for grain storage activities by arguing that “post-harvest” grain storage and processing activities differ from “farming operations” and “core agricultural operations” and thus do not fit within the small farm exemption (see our earlier post).  The agency withdrew this interpretation of the small farm exemption earlier this year.

OSHA’s new guidance memorandum

In its July 29, 2014 memorandum to OSHA regional administrators, the agency now states that a small farm would not be subject to OSHA enforcement if it simply stores its own grain on the farm, sells grain from the farm or grows, stores and grinds grain on the farm to feed its own livestock.  These activities fit within the definition of a "farming operation" because the activities are "necessary to gain economic value from grain grown on the farm."

But the agency also explains that other types of activities on a small farm could be subject to OSHA authority.   According to the agency, if a small farm engages in activities that “are not related to farming operations and are not necessary to gain economic value from products produced on the farm, those activities are not exempt from OSHA enforcement.”

The agency provides a few examples of activities on small farms that would not be exempt because they are not related to farming operations or are not necessary to gain economic value from farm products. The list includes grain-based activities, but also addresses food processing examples:

  • A grain handling operation that stores and sells grain grown on other farms.
  • A food processing facility for making cider from apples grown on the farm or for processing large carrots into "baby" carrots.
  • Milling of grain into flour used to make baked goods.
  • The agency also explains that food manufacturing operations are not exempt from OSHA enforcement activities under the appropriations rider, even if they take place on a small farm.

OSHA's new guidance memorandum on the small farm exemption is available here.

By: Peggy Kirk Hall, Tuesday, February 04th, 2014

The federal Occupational Safety & Health Administration (OSHA) generated controversy recently when several of its enforcement actions against farms with grain bin storage hit the news headlines.   The enforcement actions are contrary to a general understanding in the agricultural community that OSHA does not have authority to enforce its regulations against farms with ten or fewer employees, referred to as the “small farms rider.”  While claiming that it does not intend to enforce beyond its authority, OSHA justifies its actions in an internal agency memorandum that interprets the small farms rider.  Is OSHA’s justification reasonable or contrary to law?  Here’s the language of the small farms rider and OSHA’s explanation of its authority:

  • The Small Farms Rider.  The 2014 Consolidated Appropriations Act passed by Congress, like every previous appropriations bill since 1976, states that none of the funds appropriated by Congress to OSHA “shall be obligated or expended to prescribe, issue, administer, or enforce any standard, rule, regulation, or order under the Act which is applicable to any person who is engaged in a farming operation which does not maintain a temporary labor camp and employs 10 or fewer employees.”  (emphasis added)
  • The agency focuses on the small farm rider’s use of the term “farming operation” which, according to the agency’s prior interpretation, means “any operation involved in the growing or harvesting of crops, the raising of livestock or poultry, or related activities conducted by a farmer on sites such as farms, ranches, orchards, dairy farms or similar farming operations.”  
  • Not included in the definition of “farming operations,” according to the agency, are those establishments engaged in performing services on crops subsequent to their harvest with the intent of preparing them for market or further processing, including activities such as crop cleaning, sun drying, shelling, fumigating, curing, sorting, grading, packing and cooling, corn drying and shelling, grain drying, cleaning, and fumigating.  Why are these not considered farming operations?   Because the North American Industrial Classification System (NAICS) and Standard Industrial Codes (SIC) differentiate agricultural businesses that conduct crop and livestock production from those that conduct post-production activities.   Small farms with grain storage structures where grain is fumigated, dried, or processed subsequent to harvest and sold into the market would fall under the post-harvest NAICS codes rather than the agricultural production codes and therefore are not “farming operations” exempted by the small farms rider, states OSHA.    
  • The agency also notes that grain handling operations are not “core agricultural operations” according to OSHA’s federal regulations.  These regulations state that “core agricultural operations” include activities such as growing and harvesting crops, plants, vines, fruit trees, nut trees, ornamental plants, egg production, the raising of livestock, poultry, fish and livestock products.
Why is OSHA working so hard to distinguish grain storage activities from other farming activities?  Statistics could be one reason.   The agency notes that over 900 grain entrapment fatalities have occurred in the past 50 years with the highest on record occurring in 2010, when 26 workers died in grain engulfments.  This led to agency efforts to increase attempts to prevent deaths and injuries (see, for example, “OSHA works with The Ohio State University to promote safe practices”).  The agency also points to statistics indicating steadily growing amounts of on-farm grain storage capacity.  Finding a way to increase inspection opportunities on the expanding number of farms with grain storage would be consistent with OSHA’s efforts to reduce fatalities and injuries.  Unfortunately, recent enforcement actions against farms in Nebraska and Ohio appear punitive in nature and not simply focused on reducing risk.
 
What’s next?  Many members of Congress are pushing OSHA to revise its interpretation of the small farms rider.  OSHA has agreed, stating that it plans to look to USDA for advice on which post-harvest activities are "intimately related to farming activities and which ones aren't," according to OSHA deputy assistant secretary Jordan Barab.  An alternative to OSHA action would be for Congress to provide its own definition of “farming operations” rather than deferring to the agency’s interpretation.  
 
The important issue here:  grain handling safety.  Agriculture prides itself on knowing how best to handle its own issues.  As Congress and OSHA bicker over regulatory authority, let’s hope agriculture stays focused on grain handling practices and continues to reduce grain-related deaths.  For resources on safe grain handling, visit OSU’s Agricultural Safety & Health Program at http://agsafety.osu.edu/resources
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