OSHA Rights Its Wrong

New clarification of small farm exemption cleared up by OSHA to protect grain farmers with 10 or fewer employees.

The law is on your side when it comes to keeping OSHA off your farm.

Remember when the Occupational Safety and Health Administration’s  tried to stick a Nebraska farmer with a $132,000 fine even though small grain farmers are exempt from OSHA regulations? When Sen. Mike Johanns, R-Neb., cried foul, OSHA backed off and decided to rewrite what was causing all of the confusion.

This week OSHA formally clarified that it cannot regulate family farms with 10 or fewer employees. In the new guideline issued, OSHA recognizes that postharvest activities integral to farming operations, including drying and storing grain, are exempt from regulations if the farm has 10 or fewer employees, consistent with current law.

In a call with reporters July 30, deputy assistant secretary of labor for Occupational Safety and Health Jordan Barab said it’s never been the intent or practice of OSHA to inspect small farms. Since 1976, an appropriations rider has precluded OSHA from expending appropriated funds to conduct enforcement activities with respect to any person engaged in a farming operation with ten or fewer non-family employees that has not maintained a temporary labor camp within the preceding twelve months.

Last fall the OSHA was called out by Johanns when it was brought to his attention that a farm in Holt County, Neb. was being inspected by the agency and fined approximately $132,000 in fines. The case was dropped in February 2014 after Johanns’ intervention and OSHA also withdrew its 2011 memo which was causing the confusion.

OSHA instituted the original memorandum in response to a high number of grain fatalities and was intended to clarify to inspectors where they were allowed and not allowed to do inspections that would ensure the safety of people working in grain facilities.

“We took a look at the 2011 memo and agreed it did have some confusing language,” Barab said.

He added that the new memo defines farming operations and outlines those which are not considered a small farm.

OSHA defines a "farming operation" as "any operation involved in the growing or harvesting of crops or 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."

Crop farming operation activities include preparing the ground, sowing seeds, watering, weeding, spraying, harvesting, and all related activities necessary for these operations, such as storing, fumigating, and drying crops grown on the farm. An exempt small farm would not become subject to OSHA enforcement simply because, for example, it stores its own grain on the farm or sells that grain from the farm.

Onsite storage or sale of grain grown on the farm would constitute a "related activity" under OSHA's interpretation of "farming operation" because it is necessary to gain economic value from grain grown on the farm. Similarly, a small farm that grows grain to feed its own livestock, and stores and grinds that grain on the farm would not become subject to OSHA enforcement because of those activities.

However, if an employer performs activities on a small farm 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. For example, if an exempt small farm maintains a grain handling operation storing and selling grain grown on other farms, the grain handling operation would not be exempt from OSHA enforcement under the appropriations rider. If a small farm employer maintains a food processing facility for making cider from apples grown on the farm or for processing large carrots into "baby" carrots, or if the employer mills its grain into flour and then uses the flour to make baked goods, those food processing operations would be food manufacturing, not farming. Food manufacturing operations are not exempt from OSHA enforcement activities under the appropriations rider, even if they take place on a small farm.

Barab said prior to release of the updated memo, it was reviewed by the Department of Agriculture and other industry groups including the Farm Bureau, National Grain and Feed Association, National Council of Farm Cooperatives and National Corn Growers Association. He added the groups gave suggestions for changes, of which all OSHA accepted to make more clear to the public OSHA’s intent.

Kristi Boswell, director of congressional relations at the Farm Bureau, said the Farm Bureau appreciated the opportunity to work with OSHA on updating the memorandum and was “encouraged by the clarity the updated memorandum provides to OSHA field investigators to ensure the small farm statutory exemption is followed. “Safety remains a priority for Farm Bureau and we are working to develop a clearinghouse of educational and training material that will be available to farmers to promote safe practices on the farm," she added.

“OSHA had no business regulating family farms in the first place,” Johanns said. “Even though OSHA overreached, I applaud their promise to obey the law and listen to the concerns of the farmers and ranchers who are affected.”

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