- Record Type:OSHA Instruction
- Current Directive Number:CPL 2-0.51I
- Old Directive Number:CPL 2-0.51I
- Title:Enforcement Exemptions and Limitations under the Appropriations Act
- Information Date:
|DIRECTIVE NUMBER: CPL 2-0.51 I||EFFECTIVE DATE: October 15, 1997|
|SUBJECT: Enforcement Exemptions and Limitations under the Appropriations Act|
|Purpose:||Explains the limits on inspection activities under the Appropriations Act.|
|References:||OSHA Instruction CPL 2.103 - Field Inspection Reference Manual, CPL 2.115 - Complaint Policy and Procedures.|
|Cancellations:||OSHA Instruction CPL 2.51H.|
|State Impact:||See Paragraph VI.|
|Action Offices:||National, Regional, and Area Offices|
|Originating Office:||Directorate of Compliance Programs|
|Contact:||Don Kallstrom (202-219-8031)|
Office of General Industry Compliance Assistance
N3107 Frances Perkins Building
200 Constitution Avenue, NW
Washington, DC 20210
By and Under the Authority of
Gregory R. Watchman,
Acting Assistant Secretary
VIII. Key Terms.
- Table 1 Exceptions and Limitations
Appendix A SIC CODES FOR INDUSTRIES WITH A LOST WORKDAY
INJURY RATE BELOW THE NATIONAL PRIVATE SECTOR
RATE OF 3.4 FOR 1995.
I. Purpose. This instruction explains the limits (exemptions and limitations) for the Occupational Safety and Health Administration's (OSHA) enforcement activity under the Appropriations Act. This funding measure's riders and this instruction focus on limiting the inspection of those employers who employ ten or fewer employees.
II. Scope. This instruction applies OSHA-wide and where applicable, to those Employment Standards Administration (ESA) offices enforcing OSHA's Field Sanitation and Temporary Labor Camp standards in agricultural settings.
- A. OSHA Instruction STP 2.22A, May 14, 1986, the State Plan Policies and
- B. OSHA Instruction CPL 2.103, September 26, 1994, the Field Inspection
Reference Manual (FIRM)
- C. Secretary's Orders 5-96 and 6-96, December 27, 1996, Delegation of Authority
and Assignment of Responsibility to the Assistant Secretary for Employment
Standards and Other Officials in the Employment Standards Administration and
the Assistant Secretary for Occupational Safety and Health.
- D. OSHA Instruction CPL 2.115, June 14, 1996, Complaint Policies and Procedures
IV. Cancellation. OSHA Instruction CPL 2.51H, March 23, 1993, is canceled.
V. Action. OSHA Regional Administrators and Area Directors are to ensure that they schedule and conduct enforcement activities following the guidelines set forth in this instruction. They shall insure distribution of these guidelines to Employment Standards Administration, Wage and Hour Division District offices who are responsible for enforcing the OSHA field sanitation and temporary labor camp standards pursuant to Secretary's Order 5-96 and 6-96. These guidelines are in effect until superseded or amended.
- A. Ensure that a copy of this change is promptly forwarded to each State designee,
using a format consistent with the Plan Change Two-Way Memorandum in
Appendix P, OSHA Instruction STP 2.22A, CH-2.
- B. Explain to each State designee that States cannot be reimbursed for any share of
funds expended for activities prohibited by these exemptions and limitations and
that they must be able to demonstrate that no Federal funds have been used for
prohibited activities. The technical content of the change shall be explained as
- C. Ensure that State designees are asked to acknowledge receipt of this Federal
program change in writing to the Regional Administrator as soon as the State's
intention is known, but not later than 70 calendar days after the date of issuance
(10 days for mailing and 60 days for response). This acknowledgment must
include a written description either of the State's plan to implement the change or
of a plan to fund the prohibited activities with other than 23(g) State or Federal
- D. Review policies, instructions and guidelines issued by the State to determine that
this change has been communicated to State personnel and maintain appropriate
accounting mechanisms for assuring that no 23(g) funds are expended for these
VII. Background. In providing funding for OSHA, Congress has placed restrictions on enforcement activities regarding two categories of employers: small farming operations and small employers in low-hazard industries. The Appropriations Act contains limits for OSH Act activities on a year-by-year basis.
VIII. Key Terms. Definitions pertinent to this Directive are the following:
- A "FARMING OPERATION" means any operation [employers engaged in businesses
that have a two digit Standard Industrial Classification (SIC) of 01 (Agricultural
Production - Crops), 02 (Agricultural Production - Livestock and Animal Specialties),
and four digit SIC 0711 (Soil Preparation Services), 0721 (Crop Planting, Cultivating,
and Protecting), 0722 (Crop Harvesting, Primarily by Machine), 0761 (Farm Labor
Contractors and Crew Leaders), and 0762 Farm Management Services)] 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
- A "TEMPORARY LABOR CAMP" means farm housing directly related to the seasonal
or temporary employment of farm workers.
- "HOUSING" includes both permanent and temporary structures located on or off the
property of any employer who meets the above definition.
- "LOST WORKDAY INJURY RATE BELOW THE NATIONAL AVERAGE"is an
occupational lost workday injury (LWDI) rate which is lower than the national average
rate for the private industry sector, as most recently published by the Bureau of Labor
Statistics, at the most precise (SIC) code for which such data is published, using the 1987
IX. General Enforcement Guidelines. Before initiating enforcement activities OSHA will decide whether the appropriation rider prohibits OSHA enforcement. Where this determination cannot be made beforehand, the CSHO will determine the status of the small farming operation or a small employer in a low-hazard industry upon arrival at the workplace. If the prohibition applies, the inspector must immediately discontinue the inspection activities and leave the premises as soon as possible. Table No. 1 provides an at-a-glance reference to our activities under the funding measure.
Exceptions and Limitations
|TLC = Temporary Labor Camp||EES = Employees||ERS = Employer|
|OSHA Activity||Farm with 10 or fewer EES AND no TLC activity within 12 mo.||Farm with more than 10 EES OR a farm with an active TLC within 12 Mo.||Non-farm ERS with 10 or fewer EES in a SIC listed in Appendix A|
|Programmed Safety Inspections||Not Permitted||Can Inspect||Cannot Inspect|
|Programmed Health Inspections||Not Permitted||Can Inspect||Can Inspect|
|Employee Complaint||Not Permitted||Can Inspect||Can Inspect (See limits on Citations and Penalties)|
|FAT/CAT and Accidents||Not Permitted||Can Inspect||Can Inspect|
|Imminent Danger||Not Permitted||Can Inspect||Can Inspect|
|11C||Not Permitted||Can Inspect||Can Inspect|
|Consultation & Technical Assistance||Not Permitted||Permitted||Permitted|
|Education and Training||Not permitted||Permitted||Permitted|
|Conduct Surveys & Studies||Not Permitted||Permitted||Permitted|
X. Enforcement Guidance for Small Farming Operations. The Appropriations Act exempts small farming operations from enforcement of ALL rules, regulations, standards or orders under the Occupational Safety and Health Act.
- A. A farming operation is EXEMPT from ALL OSHA activities if it:
- 1. Employs 10 or fewer employees currently and at all times during the last
12 months; and
- 2. Has not had an active temporary labor camp during the proceeding 12
- Note: Family members of farm employers are not counted when determining the
number of employees.
- B. A farming operation with 10 or fewer employees that maintains a temporary labor
camp or has maintained a temporary labor camp within the last twelve months IS
NOT exempt from inspection. For OSHA, the inspection may include all working
conditions covered by OSHA standards except for Field Sanitation, 29 CFR
1928.110, and except as noted, Temporary Labor Camps, 29 CFR 1910.142,
which are being enforced by the Wage and Hour Division under Secretary of
Labor Order 6-96.
- 1. OSHA, however, retains inspection responsibility for those camps of
employees engaged in eggs or poultry production (SIC 025), red meat (SIC
021) or engaged in the post-harvest processing of agricultural or
horticultural commodities. Generally, post-harvest processing can be
thought of as the changing the character of the product (canning, making
cider or sauces, etc.) or a higher degree of packaging (washing, bundling
and bagging carrots) versus field sorting in a shed for size.
- C. The Wage and Hour Division, ESA, will also exercise responsibility for
enforcement in agriculture of OSHA field sanitation and temporary labor camp
standards, except as noted in "b" above, in nine States operating OSHA-approved
State plans which have elected to follow the jurisdictional transfer of authority as
effected by Secretary's Orders 5-96 and 6-96. These States are: Alaska, Indiana,
Iowa, Kentucky, Minnesota, South Carolina, Utah, Virgin Islands, and Wyoming.
- In the fourteen (14) other States operating OSHA-approved State plans,
enforcement of field sanitation and temporary labor camp standards in agriculture
will not transfer to ESA and will continue as a State responsibility. Thus, the
appropriation rider prohibitions apply. (These States are: Arizona, California,
Hawaii, Maryland, Michigan, Nevada, New Mexico, North Carolina, Oregon,
Puerto Rico, Tennessee, Vermont, Virginia, and Washington.
XI. Enforcement Guidance for Small Employers in low-hazard industries. The Appropriations Act exempts small employers in low-hazard industries from PROGRAMMED SAFETY INSPECTIONS.
- A. No programmed safety inspections are permitted of a small employer if:
- 1. It employs 10 or fewer employees currently and at all times during the last
12 months; and
- 2. The lost workday case rate for its primary SIC work activity is below the
all-industry national average. (See Appendix A for listings.)
- B. The Appropriations Act allows several OSHA activities in establishments of small
(10 or fewer employees) low-hazard rate employers that are exempt from
programmed safety inspections. All OSHA Offices are allowed to:
- 1. Provide consultation and technical assistance as well as educational and
training services. It can also conduct surveys and studies authorized by the
- 2. Investigate or schedule inspections in response to an employee complaint
in accordance with current complaint procedures in CPL 2.115. However,
the enforcement policy in this directive takes precedence over the
complaint policy directive. Under current OSHA complaint procedures,
the term "employee" means a current employee, not a former employee.
Thus, the only complaint inspections which are permitted, are those from
- a. Citations may be issued for any violation found during a complaint
inspection whether or not the violative condition is a subject of the
- 3. Take any action authorized by the Act with respect to alleged imminent
- 4. Take any action authorized by the Act with respect to HEALTH
- b. Apparent safety violations noted during a health inspection of an
establishment exempted from programmed safety inspections shall not be
cited or referred for later inspection unless such violations create an
- Note: The reporting requirements of 29 CFR 1904.8 have not changed.
Employers are not obligated to report accidents involving overnight
hospitalization of fewer than three employees. However, OSHA is allowed to
conduct any accident investigation of a small, non-farming, employer once we
become aware that an accident has occurred. Where OSHA learns of such
accidents, we can inspect or investigate.
- 6. Take any action authorized by the Act with respect to alleged
discrimination against employees.
XII. Late Discovery of Exemption. If it becomes clear after an inspection that the employer was exempt from inspection at the time of the inspection, the Area Director shall ensure that no citations are issued or penalties proposed contrary to the provisions of this instruction.
XIII. IMIS. If an inspection is not conducted because of an Appropriations Act rider
exemption, the CSHO shall complete an OSHA-1 Form according to current IMIS
WORKDAY INJURY RATE BELOW THE NATIONAL
PRIVATE SECTOR RATE OF 3.4 FOR 1995
* Agriculture (SICs 01 and 02) All employers with 10 or FEWER employees are exempt from OSHA.
NOTE: SICs with zero in the third or fourth digit include all three and
four digit SICs with the same leading two or three digits.
Accident 1, 2, 3,
Bureau of Labor Statistics 1
Closing Conference 1
Failure to Abate 1
Health hazards 1
Review Commission 1
State Plan 1
State Programs 1