Bins caught in OSHA's crosshairs

Published on: Dec 27, 2013

DATING back to 1976, small farms — those with 10 or fewer employees — have been specifically exempted from Occupational Safety & Health Administration (OSHA) regulation, but OSHA is trying to expand its reach, saying any farm with a grain bin comes under its jurisdiction.

Now, a bipartisan group of Senators has called on the secretary of labor to demand that OSHA back down.

On the Senate floor Dec. 18, Sen. Mike Johanns (R., Neb.) spoke about the latest OSHA action as what he deemed an "anti-agriculture agenda with this Administration" and defying congressional intent.

One of the farms targeted is in Holt County, Neb.

OSHA is claiming that grain bins are not part of farm operations and, thus, are not exempt. The OSHA fines against this farm total approximately $132,000. No injuries have occurred.

Johanns told Feedstuffs that he also knows of farms in Ohio and Michigan where OSHA has made similar attempts to regulate their grain bins.

"I personally believe OSHA is setting up a test here," Johanns said, adding that the agency is trying to see if it could slip the action by Congress.

In a 2011 memo, OSHA asserted that on-farm grain storage and handling were not part of farming operations. The memo essentially expanded OSHA's regulatory scope to nearly every farm in the country without going through the established rule-making process that allows congressional review and public comment — in defiance of the law.

Under the agency's logic, nearly every farm in the country — roughly 300,000  — would be outside the scope of Congress' exemption because almost all farms use some sort of grain storage facility as part of their normal farm operations.

Congress has included language in appropriations bills since 1976 expressly prohibiting OSHA enforcement actions against farmers with 10 or fewer employees.

Johanns led the effort to drum up bipartisan support. After two days, he'd gathered 42 other signatures in a letter to Labor Secretary Thomas Perez, who oversees OSHA, as well as to OSHA, asking that OSHA update guidance correcting its misinterpretation of the law.

The letter asks Perez to take three steps:

1. Cease all OSHA actions predicated on the skewed interpretation of the congressional exemption;

2. Require OSHA to correct its misinterpretation after seeking guidance from the U.S. Department of Agriculture and agriculture-related organizations, and

3. Require OSHA to provide a list and description of the regulatory actions taken since 2011 against farms with incorrectly categorized non-farming activities and 10 or fewer employees.

"In viewing a farm's 'grain bin operation' as somehow distinct from its farming operation, OSHA is creating an artificial distinction in an apparent effort to circumvent the congressional prohibition on regulating farms," the senators wrote. "The use of grain bins is an integral part of farming operations. Without grain bins, farmers must sell corn and soybeans immediately after harvest, when prices are usually low. Storing grain in bins is, thus, a fundamental aspect of farming. Any farm that employs 10 or fewer employees and uses grain bins only for storage prior to marketing should be exempt, as required by law, from OSHA regulations."

The letter accuses OSHA of "bureaucratic mission creep" and says the agency should ask Congress for such regulatory authority.

"Worker safety is an important concern for all of us, including the many farmers who probably know better than OSHA regulators how to keep themselves and their employees safe on farms," the letter says. "If the Administration believes that OSHA should be able to enforce its regulations on farms, it should make that case to Congress rather than twisting the law in the service of bureaucratic mission creep. Until then, Congress has spoken clearly, and we sincerely hope that you will support America's farmers and respect the intent of Congress by reining in OSHA."

Senate Agriculture Committee ranking member Thad Cochran (R., Miss.) added, "The way the Administration is going about putting OSHA on family-owned farms is unconscionable. Congress specifically exempts small farming operations from the heavy hand of this bureaucracy. OSHA must stop this overreach and adhere to the law."

Johanns concluded, "My intent is to stop OSHA in their tracks. The simple reality is OSHA inspectors are the ones breaking the law, not hard-working ag producers in Nebraska and across the country. Congress has been clear for decades that costly OSHA regulations do not apply to small, family-run farms. Now, OSHA is making up its own rules, and that's unacceptable."

Volume:85 Issue:53