OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at http://www.osha.gov.
|June 28, 2011
STATE PLAN DESIGNEES
||RICHARD E. FAIRFAX
Deputy Assistant Secretary
||THOMAS GALASSI, Director
Directorate of Enforcement Programs
||OSHA's Authority to Perform Enforcement Activities at Small Farms with Grain Storage Structures Involved in Postharvest Crop Activities (SIC 0723/NAICS 115114)
The purpose of this memorandum is to provide clarification and guidance on OSHA's authority to conduct enforcement activities at small farms with grain storage structures that perform postharvest grain activities. The small farms at issue are those which did not maintain a temporary labor camp or employ ten or fewer employees at all their workplaces1 during the preceding twelve months. 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.
The Farming Appropriations Rider states:
...that] none of the [OSHA] funds appropriated under this paragraph 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].
Consolidated Appropriations Act, 2010, Public Law No. 111-117, 123 Stat. 3034, 3233 (2009)
As provided in CPL 02-00-051, Enforcement Exemptions and Limitations under the Appropriations Act, a "farming operation"" 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. These are employers engaged in businesses that have a two digit Standard Industrial Classification (SIC) of 01 and three digit North American Industry Classification System (NAICS) of 111 (Agricultural Production - Crops); two digit SIC 02 and NAICS 112 (Agricultural Production - Livestock and Animal Specialties); four digit SIC 0711 and six digit NAICS 115112 (Soil Preparation Services); SIC 0721 and NAICS 115112 (Crop Planting, Cultivating, and Protecting); SIC 0722 and NAICS 115113 (Crop Harvesting, Primarily by Machine); SIC 0761 and NAICS 115115 (Farm Labor Contractors and Crew Leaders); and SIC 0762 and NAICS 115116 (Farm Management Services).
Operations on a small farm that fall under these SIC or NAICS are exempt from enforcement activities. However, if the small farm performs postharvest crop activities which are covered under SIC 0723 or NAICS 115114 - neither of which are covered by the Farming Appropriations Rider - then OSHA has jurisdiction over those non-exempt operations.
Both SIC 0723 and NAICS 115114 cover establishments engaged in performing services on crops, subsequent to their harvest, with the intent of preparing them for market or further processing. These establishments provide postharvest activities, such as crop cleaning, sun drying, shelling, fumigating, curing, sorting, grading, packing, and cooling. Corn drying and shelling as well as grain drying, cleaning, and fumigating are also covered under this SIC or NAICS. Therefore, if a small farm has a grain storage structure where: a) grain is fumigated, dried, or processed in a manner addressed under this NAICS or SIC subsequent to its harvest; and b) the grain is sold (put into the market, instead of being used on the farm for agricultural operations), then OSHA has jurisdiction over the grain handling operations. It is also important to note that the grain handling operations are not covered by 29 CFR 1928 since they are not core agricultural operations, such as growing and harvesting crops, plants, vines, fruit trees, nut trees, ornamental plants, egg production, the raising of livestock (including poultry and fish), as well as livestock products. The grain handling operations are covered by 29 CFR 1910.272.
Additionally, it is important to note that OSHA can perform programmed inspections for such non-exempt postharvest operations (SIC 0723 and NAICS 115114) because the 2009 Days Away, Restricted, or Transferred (DART) rate for this industry was at the national average of 1.9. Therefore, as none of the other Appropriation Rider restrictions would apply, OSHA can perform all enforcement activities regardless of the size of the employer.
1 See 42 Fed. Reg. 5356 published on January 28, 1977. [Return to Text]