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home : news : state news June 24, 2016

1/6/2014 3:08:00 PM
Senators: Obama administration again targets small farmers
Johnson signs letter condemning OSHA's regulatory "overreach" on small farms

Richard Moore
Investigative Reporter

Since the beginning of its tenure, the Obama administration has moved aggressively to regulate the nation’s agricultural operations, and small farms in particular – remember the attempt to regulate farm dust, which the EPA finally abandoned a year ago? – and now a bipartisan group of U.S. senators says the executive branch is again overreaching against small farms.

Led by Sen. Mike Johanns (R-Neb.), 42 senators have penned a letter urging the Occupational Safety and Health Administration to immediately stop what they call unlawful regulation of family farms. Specifically, they contend, the agency has begun to enforce agricultural rules on the smallest of operations, those with fewer than 10 workers, which Congress has traditionally exempted.

Wisconsin U.S. Sen. Ron Johnson is among the signees. In the letter to Department of Labor secretary Thomas Perez, the lawmakers asked OSHA to issue updated guidance correcting their misinterpretation of the law.

In a speech on the Senate floor in December, Johanns said the regulatory decision represents another effort by the Obama administration to bypass Congress.

“This is the latest attempt by the administration to expand their regulatory reach by making an end run around Congress and the American people,” Johanns said. “OSHA is out of line here, not our hard working ag producers. I am going to work to ensure OSHA – and the rest of the administration – plays by the rules.”


The history

Since 1976, Congress has exempted small, family-run farms from OSHA regulations, the senators pointed out in the letter. 

However, a 2011 OSHA memo has surfaced in which the agency has declared that on-farm grain storage and handling is not part of exempted core farm operations. 

“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 June 28, 2011, memo stated. “The small farms at issue are those which did not maintain a temporary labor camp or employ ten or fewer employees at all their workplaces 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.”

Not so, the agency concluded.

To wit, OSHA stated, an exempt 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. But the exemption does not include small farms that perform post-harvest crop activities “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,” the memo stated. “Corn drying and shelling as well as grain drying, cleaning, and fumigating are also covered ....”

According to the senators, that essentially expands OSHA’s regulatory scope to nearly every grain farm in the country, and does so without going through the established rule-making process, which triggers congressional review and public comment.

“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 stated in their letter to Perez. “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 used grain bins only for storage prior to marketing should be exempt, as required by law, from OSHA regulations.”

Many farms have grain dryers on-farm to address wet harvest conditions or fumigate grain to prevent pests from ruining a crop prior to marketing, the lawmakers wrote: “Those are basic, common, and responsible farming activities that OSHA has arbitrarily decided are non-exempt.”

While worker safety is important, the senators added, most farmers probably know better than OSHA regulators how to keep themselves and their employees safe on farms.  

“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,” the letter stated. “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.”

The matter came to light after the agency began issuing citations reportedly tallying thousands of dollars. The senators are demanding an accounting of the regulatory enforcements and fines.

“Finally, we ask that OSHA provide a list and description of regulatory actions taken against farms with incorrectly categorized non-farming activities and 10 or fewer employees since the June 2011 memo,” the lawmakers wrote. “Given the nearly four decades of Congressional prohibition of OSHA enforcement against farms, this should be a simple request to fulfill.”

The letters asked the agency to respond no later than Feb. 1, with a copy of its corrected guidance, the data regarding enforcement actions on farms, and confirmation that OSHA would cease such enforcement. 

Richard Moore may be reached at richardmoore.gov@gmail.com

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