THE controversial 2011 memo issued by the Occupational Safety & Health Administration (OSHA) regarding on-farm inspections of small grain operations was one topic discussed at a Feb. 4 House Education & Workforce Committee hearing on OSHA's regulatory agenda.
Less than a week after the hearing, the U.S. Department of Labor did withdraw the memo from its website. The memo was previously sent to OSHA inspectors and provided guidance for on-farm inspections that allowed inspectors onto farms with fewer than 10 employees.
In the 1976 labor, health and human services appropriations bill — and in every appropriations bill thereafter — Congress has exempted small farming operations from OSHA enforcement actions if they do not maintain a temporary labor camp and have 10 or fewer employees.
The June 2011 memorandum by OSHA's director of enforcement programs declared that all activities under SIC 072 — including drying and fumigating grain — would be subject to all OSHA requirements. OSHA added, "Many of these small farm employers mistakenly assume that the appropriations rider precludes OSHA from conducting enforcement activities regardless of the type of operations performed on the farm."
In testimony before the House worker protections subcommittee, Scott VanderWal, president of the South Dakota Farm Bureau Federation, said the bureau agrees that a mistake was indeed made, but it does not lie with small farm employees; "instead, OSHA 'mistakenly assumes' what is integral to a farming operation and has, thereby, circumvented clear congressional direction."
A Nebraska farming operation with one non-family employee was fined more than $130,000 for not following OSHA regulations related to grain stored and harvested by the farmer. An Ohio farmer had a similar situation occur, although the case was dropped once members of Congress began to cry foul on the actions.
In opening comments at the hearing, workforce protections subcommittee chairman Tim Walberg (R., Mich.) said to justify its new policy, OSHA's flawed logic suggests that anything outside the activities of growing crops or raising livestock is considered "non-farming operations" and, therefore, subject to inspection.
"It would surprise most farmers to learn that the storage of grain, corn or wheat is not a vital part of their farming operation," he said.
Walberg said he and committee chairman John Kline (R., Minn.) noted in a recent letter to OSHA assistant secretary David Michaels, "The guidance simply does not reflect the reality of family farming or the will of Congress (and) should be withdrawn."
Brian Kennedy, assistant secretary for the DOL Office of Congressional & Intergovernmental Affairs, said in a Feb. 10 letter to Sen. Mike Johanns (R., Neb.) and other senators who questioned OSHA's actions that the department "intends to fully comply with the small farms exemption."
"The June 28, 2011, memorandum was intended to provide clarification and not to change longstanding OSHA policy," Kennedy wrote.
He added that DOL will issue a new guidance after consulting with the U.S. Department of Agriculture. This mirrors similar comments that OSHA deputy assistant secretary Jordan Barab made on a Jan. 23 media call (Feedstuffs, Jan. 27).
Kennedy said OSHA held a preliminary call with USDA on Jan. 31, and to avoid any confusion in the meantime, OSHA has removed the memo from its website.
The letter also outlined that OSHA has instructed its field offices, in cases of uncertainty, to request clarification from the national office when determining if farming operations are exempt.
"This additional level of review is intended to ensure compliance with the appropriations language," the letter added.
In a statement, American Farm Bureau Federation president Bob Stallman said he is "optimistic" that the action will result in OSHA's compliance with the farm exemption.
Stallman said he appreciates OSHA's concern with grain bin safety but also believes that improving farm safety is a "collaborative, cooperative process that was not helped by OSHA's enforcement under the just-rescinded 2011 guidance document that was not consistent with the law."