Agency must clarify normal on-farm grain handling activities

Jan 31, 2014

OSHA inspectors shouldn’t be inspecting grain bins on most farming operations, but just to be certain, the agency is now going to clarify its regulations on post-harvest activities.

A top administrator with the Occupational Safety and Health Administration held a press call Wednesday to clear up some confusion on OSHA’s farm exemption. Following new commands from Congress last week, OSHA also is now consulting with USDA on ways farmers handle grain after harvest.

OSHA’s consultation with USDA comes after Sen. Mike Johanns, (R-NE) spotlighted that a farm in his state faces a potential $132,000 fine following a 2011 inspection of the farm’s grain bins. OSHA began examining some more grain elevators in 2010 after a string of fatalities. A 2011 memo to field inspectors also implied inspectors could broaden inspections regarding post-harvest handling of grain. Johanns and 42 other senators wrote OSHA to argue the agency is violating a 1976 appropriations bill that excluded farms with fewer than 10 employees from being subject to OSHA inspections.

Jordan Barab, Deputy Assistant Secretary of Labor for OSHA, told reporters last Wednesday that the agency is now working to clear up some confusion on how OSHA handles small farms.

“We take the small farm rider, the 1976 rider, very seriously,” Barab said. “It has never been our intent, our practice or our policy to target small farms for inspection in violation of the congressional rider. In fact, it has been our intent and practice to strictly comply with the rider.”

Barab said OSHA’s work on grain handling began following 57 reported grain accidents in 2010 that resulted in 31 fatalities, some of whom were teenagers. OSHA not only provided technical assistance, but also sent compliance letters to every grain elevator in the country informing them about the problems and highlighting OSHA standards. By 2012, the reported accidents had declined to 19 that resulted in eight fatalities.

Yet, the agency was also trying to balance the push for stepping up inspections with avoiding stepping on toes of farmers who didn’t think they had to meet OS- HA worksite standards. Barab said OSHA’s practices have been consistent regarding who warrants inspection and who does not, but if farmers feel the language is confusing, then OSHA will clarify it.

Barab said OSHA has tried to make sure inspectors did not go to the wrong places. “They only went to places where clear examples of non-farm activities were going on like major grain operations that may have been in some way located near farms or associated with farms,” Barab said.

The agency also is going back through its records to make sure OSHA has not inappropriately inspected farms that didn’t meet the definition established in 1976.

The omnibus appropriations bill approved by Congress last week included accompanying language requiring OSHA to clarify the small-farm exemption to include post-harvest activities. The language also encourages OSHA to work with USDA before moving forward with any attempts to regulate post-harvest activities such as storing, drying, grinding or other activities related to marketing farm products.

Thus, OSHA is now going to sit down with USDA to “very clearly define” which post-harvest activities are part of a normal farming operation and which ones are not. Plans are already in motion to hold a meeting with USDA.

“We don’t want there to be any doubt with small farmers that we are (not) going to come onto their farms and cite them for anything related to their farming operations,” Barab said. “That’s not our intent.”

“In general it is not our policy nor has it been our practice to inspect grain activities that are an intrinsic part of the farming process,” Barab said. “That is not what our interpretation says. That’s not what we have been doing, we don’t believe.”

The Nebraska case that sparked the proposed $132,000 fine remains in litigation. Barab said he could not talk too specifically about the case, but he did say OSHA does not consider the cited facility to be a farm operation.

“The reason we went out there in the first place and conducted the inspection is because the industry code, the self-selected industry code, put them not as a farming operation but actually as a field and bean merchant wholesaler. In other words, not a farming operation, nor did they claim to be a farming operation when we first went out there.”

OSHA will still be faced with clarifying the distinction between a large amount of on-farm storage and a commercial grain-handling business. That will generally be determined on a caseby-case basis.

“If the farm is storing its own grain for obviously farming activities or even selling its own grain, that would not be something we would go there for,” Barab said. “In some situations we’ve had before where there is a more or less separate grain operation where the farmer is buying and selling grain from other places and processing it, unrelated to the actual farming activities, that might be some place that doesn’t fall under the rider.”

The sensitivity to inappropriately inspecting a farm operation has caused OSHA’s field staff to now submit information to the national office regarding any potential inspection that could be challenged. “We will make sure we are in the right place and not go into places that are covered by the rider,” Barab said.

U.S. farms have more than 13 billion bushels of storage capacity. Based on quarterly USDA numbers, farms in 2013 stored nearly 6.4 billion bushels of corn, nearly 1 billion bushels of soybeans and 570 million bushels of wheat, as well.

DTN’s 360 poll asked farmers over the past week who built new grain-handling equipment or added bins to an existing facility what best describes the safety features they included. Out of 246 responses, 50 percent said they purchased basic safety features such as ladder cages and shields. Another 29 percent responded that they do not have employees so they did not look into available safety features. Ten percent of respondents said they added all the safety and protective features that were available. Another 6 percent said they did not consider safety features, but may consider adding them now. Five percent said they added all the safety features available or are in the process of retrofitting safety features to existing grain bins. — Chris Clayton, DTN