OSHA Instruction CPL 2.51H March 22, 1993 Directorate of Compliance Programs

SUBJECT: Exemptions and Limitations Under the Current Appropriations Act

A. PURPOSE. This instruction implements exemptions and limitations placed on OSHA activities by the Congress in the current Appropriations Act funding the Department of Labor which became effective October 6, 1992.

B. SCOPE. This instruction applies OSHA-wide.

C. REFERENCES.

1. OSHA Instruction STP 2.22A CH-2, January 20, 1986, the State Plan Policies and Procedures Manual.

2. OSHA Instruction CPL 2.45B, June 15, 1989, the Field Operations Manual (FOM).

3. OSHA Instruction ADM 1-1.12B, December 29, 1989, the Integrated Management Information System (IMIS) Forms Manual.

D. CANCELLATION. OSHA Instruction CPL 2.5IG, March 23, 1992, is canceled.

E. ACTION. Regional Administrators and Area Directors shall ensure that enforcement activities are scheduled and conducted in accordance with the guidelines set forth in H. of this instruction. These guidelines are in effect until superseded.

F. FEDERAL PROGRAM CHANGE. This instruction describes a Federal program change which affects State programs. Each Regional Administrator shall:

1. 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.

2. 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 requested.

3. 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) funds.

4. Review policies, instructions and guidelines issued by the State to determine that this change has been communicated to State personnel and maintain appropriate accounting records.

G. BACKGROUND. Restrictions placed on OSHA in FY 1992 have been continued by the current (FY 1993) Appropriations Act.

1. This instruction contains editorial clarifications to OSHA Instruction CPL 2.51G, which it replaces.

2. That portion of the current Appropriations Act relevant to OSHA funding and inspection limitations is provided in Appendix B.

H. GUIDELINES. The Appropriations Act maintains certain exemptions and limitations on OSHA activities which were imposed in previous fiscal years.

1. THE APPROPRIATIONS ACT MAINTAINS THE PREVIOUSLY IMPLEMENTED EXEMPTION OF CERTAIN FARMING OPERATIONS FROM ALL RULES, REGULATIONS, STANDARDS OR ORDERS UNDER THE OCCUPATIONAL SAFETY AND HEALTH ACT.

a. FARMING OPERATIONS. A farming operation is exempt from OSHA inspections if it presently has, and has had at all times during the preceding 12 months, 10 or fewer employees and does not maintain an active temporary labor camp.

(1) The CSHO shall make an exemption determination as soon as possible after arrival at a farming operation and leave the premises if the operation is exempt.

NOTE: Family members of farm employers shall not be regarded as employees when determining the number of employees.

(2) A temporary labor camp which is unoccupied at the time of the inspection and is expected to remain unoccupied during the subsequent 12 month period shall not be considered an active camp and does not affect the exempt status of the farming operation.

(3) CSHO's shall conduct an inspection in accordance with the FOM under either of the following conditions:

(a) If a farming operation currently employs, or has employed at any time during the preceding 12 months, more than 10 employees; or

(b) If a farming operation maintains an active temporary labor camp.

NOTE: The inspection may include all working conditions covered by OSHA standards; or it may be limited (e.g., to migrant housing facilities), depending on the availability of resources.

(4) If an inspection is not conducted because a farming employer is exempt, the CSHO shall complete an OSHA-1 Form according to current instructions in the IMIS Forms Manual.

(5) Definitions pertinent to this section are the following:

(a) A "farming operation" is defined as 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.

(b) A "temporary labor camp" is defined as farm housing directly related to the seasonal or temporary employment of migrant farm workers.

(c) "Housing" includes both permanent and temporary structures located on or off the property of the employer, provided it meets the foregoing definition.

b. RECREATIONAL HUNTING, SHOOTING OR FISHING. Recreational hunting, shooting or fishing activities are no longer addressed in the Appropriations Act as an exempt industry. Organizations (profit or nonprofit) engaged in such activities, therefore, can be inspected if they are not exempted under the small business exemption described in H.2.

(1) Regional Offices as a matter of policy, are encouraged not to recommend or approve local emphasis programs (LEP) that target these industries because they are no longer exempt.

(2) Any LEP proposing to target these recreational industries will require National Office concurrence.

2. EMPLOYER'S LOST WORKDAY INJURY RATE BELOW THE NATIONAL AVERAGE. The Appropriations Act exempts from programmed safety inspections any employer

with 10 or fewer employees currently and at all times during the last 12 months and within an industry having an occupational lost workday injury (LWDI) rate lower than the national average rate for the private industry sector as most recently published by the Bureau of Labor Statistics (3.7 for 1991) at the most precise Standard Industrial Classification (SIC) code for which such data is published using the 1987 manual.

a. LWDI RATE. Employers with 10 or fewer employees within an industry classified in a SIC code with an LWDI rate less than 3.7 are exempt from all safety inspections, both programmed and unprogrammed, except as described in H.2.c. The affected SIC codes are listed in Appendix A.

b. EXEMPTION FROM INSPECTION. Area Directors shall determine an employer's SIC code before conducting any programmed or unprogrammed safety inspection.

(1) If the employer is in an industry within an exempt SIC code, the Area Director shall determine if the employer meets the employment criterion in H.2.

(2) If the number of employees cannot be determined prior to the safety inspection, the CSHO shall determine the number during the opening conference.

(3) If the employer currently has and has had 10 or fewer employees at all times during the preceding 12 months, the inspection shall not be conducted except as noted in H.2.c.

c. EXCEPTIONS IN THE APPROPRIATIONS ACT. The following activities are permissible in establishments of employers that are otherwise exempt under H.2:

(1) Consultation, technical assistance, and educational and training services may be provided; and surveys and studies may be conducted.

(2) Inspections may be scheduled in response to a formal employee complaint in accordance with current complaint procedures.

(a) Citations may be issued for any violation found during a formal complaint inspection whether or not the violative condition is a subject of the complaint.

(b) Penalties may be assessed for safety violations found during a formal complaint inspection ONLY when such violations are classified as willful violations or as failures to abate.

(3) OSHA may take any action authorized by the Act with respect to alleged imminent danger situations.

(4) OSHA may take any action authorized by the Act with respect to health hazards.

(a) Health inspections shall be scheduled, observed health hazards cited, and penalties assessed for all classifications of violations in accordance with current procedures.

(b) Apparent safety violations noted during a health inspection of an establishment exempted from safety inspections under H.2.b. shall not be cited or referred for later inspection unless such violations result from hazards alleged in a formal complaint, a report of imminent danger, or a fatality/catastrophe report.

(5) OSHA may take any action authorized by the Act with respect to employment accidents involving a fatality OF ONE OR MORE EMPLOYEES OR HOSPITALIZATION OF TWO OR MORE EMPLOYEES. All apparent violative conditions involving safety or health may be cited and penalties proposed regardless of whether the conditions were related to the accident.

(a) 29 CFR 1904.8, THE ACCIDENT REPORTING REQUIREMENT HAS NOT BEEN CHANGED. THERE IS NO OBLIGATION ON THE PART OF AN EMPLOYER TO REPORT ACCIDENTS INVOLVING THE HOSPITALIZATION OF FEWER THAN FIVE EMPLOYEES.

(b) HOWEVER, IF OSHA LEARNS OF SUCH AN ACCIDENT AT A WORKPLACE COVERED BY THE ACT, OSHA MAY INSPECT.

(6) OSHA may take any action authorized by the Act with respect to alleged discrimination against employees.

d. If it is learned after an inspection that the employer was exempt 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.

(1) If already issued, any such citation or proposed penalty shall be withdrawn.

(2) If the employer has already filed a notice of intent to contest, the Area Director shall inform the Regional Solicitor who shall take appropriate action to ensure that the case is not pursued before the Occupational Safety and Health Review Commission.

(3) If such citations and penalties have become a final order, the Area Director shall ensure that no penalties are collected or, if collected, that they are refunded to the employer.

Roger A. Clark, Director Directorate of Compliance Programs

DISTRIBUTION: National, Regional, and Area Offices All Compliance Officers State Designees NIOSH Regional Program Directors 7(c)(1) Project Managers

FINANCE FISHING REAL ESTATE MINING TRANSPORTATION INSURANCE CONSTRUCTION MANUFACTURING PUBLIC UTILITIES TRADE SERVICES

0740 2110 2812 3555 4120 5040 6000-8900 0970 2120 2813 3563 4140 5060 EXCEPT 1310 2130 2819 3565 4480 5070 6510 1320 2210 2820 3570 4520 5080 7010 1530 2220 2830 3613 4600 5110 7020 2251 2842 3625 4700 5120 7030 2252 2843 3629 EXCEPT 5130 7040 2281 2860 3634 4780 5150 7340 2284 2873 3635 4800 5160 7350 2297 2874 3641 EXCEPT 5170 7510 2310 2879 3643 4840 5230 7540 2321 2891 3647 4910 5250 7630 2329 2895 3650 4930 5460 7690 2330 2899 3660 5500 7910 2340 2910 3670 EXCEPT 7920 2360 2951 EXCEPT 5530 7940 2370 3144 3671 5600 8090 2380 3150 3677 5700 8020 2395 3160 3694 5800 8040 2396 3170 3695 5900 8050 2620 3190 3699 EXCEPT 8060 2672 3259 3721 5980 8080 2710 3275 3760 8090 2720 3295 3800 8330 2731 3482 EXCEPT 8360 2740 3483 3821 8420 2752 3489 3911 2759 3519 3915 2760 3545 3951 2782 3546 3953 2790 3552 3961

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.

OFFICE OF STATISTICS, OSHA, 3/30/95.

The following are SIC codes which were on the exempt list for FY 94 published in the current version of OSHA Instruction CPL 2.51 but are not included on the exempt SIC code list for FY 95:

0920 2770 3149 3677 4780 2230 2841 3331 3692 4920 2259 2875 3533 3721 5020 2269 3142 3566 3795 7510 2289 3143 3594 3821 8090

The following are SIC codes which were not on the exempt list for FY 94 published in the current version of OSHA Instruction CPL 2.51 but are on the FY 95 list of exempt SIC codes:

0970 2843 3259 3721 5230 2120 2891 3552 3843 5460 2297 2951 3563 4140 7210 2396 3150 3565 4520 7360 2620 3160 3579 5130 8030 2842 3172 3613 5150

NOTE: SICs with zero in the third or fourth digit include all three and

four digits SICs with the same leading two or three digits. OFFICE OF STATISTICS, OSHA, 3/30/95.

AND HUMAN SERVICES, AND EDUCATION, AND RELATED AGENCIES APPROPRIATIONS ACT, 1993

106 STAT. 1796 PUBLIC LAW 102-394-OCT. 6, 1992

subsequent to August 15 of the current year: Provided, That such sums as are necessary may be used for a demonstration project under section 8104 of title 5, United States Code, in which the Secretary may reimburse an employer, who is not the employer at the time of injury, for portions of the salary of a reemployed, disabled beneficiary: Provided further, That balances of reimbursements from Federal Government agencies unobligated on September 30, 1992, shall remain available until expended for the payment of compensation, benefits, and expenses: Provided further, That in addition there shall be transferred from the Postal Service fund to this appropriation such sums as the Secretary of Labor determines to be the cost of administration for Postal service employees through September 30, 1993: Provided further, That the Secretary may require that any person filing a notice of injury or a claim for benefits under Subchapter 5, U.S.C., Chapter 81, or under Subchapter 33, U.S.C., 901, et seq. (the Longshore and Harbor Workers' Compensation Act, as amended), provide as part of such notice and claim, such identifying information (including Social Security account number) as such regulations may prescribe.

$944,027,000, of which $888,251,000, shall be available until September 30, 1994, for payment of all benefits as authorized by section 9501(d)(1), (2), (4), and (7) of the Internal Revenue code of 1954, as amended, and interest on advances as authorized by section 9501(c)(2) of that Act, and of which $29,726,00 shall be available for transfer to Employment Standards Administration, Salaries and Expenses, and $25,698,000 for transfer to Departmental Management, Salaries and Expenses, and $352,000 for transfer to Departmental Management, Office of Inspector General, for expenses of operation and administration of the Black Lung Benefits program as authorized by section 9501(d)(5)(A) of that Act: Provided, That in addition, such amounts as may be necessary may be charged to the subsequent year appropriation for the payment of compensation, interest, or other benefits for any period subsequent to June 15 of the current year: Provided further, That in addition such amounts shall be paid from this fund into miscellaneous receipts as the Secretary of the Treasury determines to be the administrative expenses of the Department of the Treasury for administering the fund during the current fiscal year, as authorized by section 9501(d)(5)(B) of that Act.

Administration, $290,895,000, including not to exceed $68,927,000, which shall be the maximum amount available for grants to States under section 23(g) of the Occupational Safety and Health Act, which grants shall be no less than fifty percent of the costs of State occupational safety and health programs required to be incurred under plans approved by the Secretary under section 18 of the Occupational Safety and Health Act of 1970: Provided, That

PUBLIC LAW 102-394--OCT.6, 1992 106 STAT. 1796

none of the funds appropriated under this paragraph shall be obligated or expended to prescribe, issue, administer, or enforce any standard, rule, regulation, or order under the Occupational Safety and Health Act of 1970 which is applicable to any person who is engaged in a farming operation which does not maintain a temporary labor camp and employs ten or fewer employees: Provided further, That no funds appropriated under this paragraph shall be obligated or expended to administer or enforce any standard, rule, regulation, or order under the Occupational Safety and Health Act of 1970 with respect to any employer of ten or fewer employees who is included within a category having an occupational injury lost workday case rate, at the most precise Standard Industrial Classification Code for which such data are published, less than the national average rate as such rates are most recently published by the Secretary, acting through the Bureau of Labor Statistics, in accordance with section 24 of that Act (29 U.S.C.673), except--

(1) to provide, as authorized by such Act, consultation, technical assistance, educational and training services, and to conduct surveys and studies;

response to an employee complaint, to issue a citation for violations found during such inspection, and to assess a penalty for violations which are not corrected within a reasonable abatement period and for any willful violations found;

respect to imminent dangers;

respect to health hazards;

respect to a report of an employment accident which is fatal to one or more employees or which results in hospitalization of two or more employees, and to take any action pursuant to to such investigation authorized by such Act; and

respect to complaints of discrimination against employees for exercising rights under such Act:

Provided further, That the foregoing proviso shall not apply to any person who is engaged in a farming operation which does not maintain a temporary labor camp and employs ten or fewer employees.

Administration, $193,044,000, of which $5,634,000 shall be for the State Grants Program, including purchase and bestowal of certificates and trophies in connection with mine rescue and first-aid work, and the hire of passenger motor vehicles; the Secretary is authorized to accept 30 USC 96: lands, buildings, equipment, and other contributions from public and private sources and to prosecute projects in cooperation with other agencies, Federal, State, or private; the Mine Safety and Health Administration is authorized to promote health and safety education and training in the mining community through cooperative programs with States, industry, and safety