Understanding
the “Small
Farms Rider” and OSHA Inspection Authority on Farms
By Sam Custer
OSU Extension, Darke County
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)
OSHA's Memorandum. In
its standard interpretation memorandum titled “Authority
to Perform Enforcement Activities at Small Farms with Grain Storage
Structures Involved in Postharvest Crop Activities” dated
June
28, 2011, OSHA begins by acknowledging the small farms rider but then
lays out several reasons why grain storage facilities, even if
located on farms, do not fall under the rider and are not exempt from
OSHA enforcement:
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
For more information about
OSU Extension, Darke County, visit the Darke County OSU Extension web
site at www.darke.osu.edu, the OSU Extension Darke County Facebook
page or contact Sam Custer, at 937.548.5215.
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