DIRECTIVE NUMBER: CPL 2-0.51 I	EFFECTIVE DATE: October 15, 1997
SUBJECT: Enforcement Exemptions and Limitations under the Appropriations Act

 

 

ABSTRACT

 

 

 

Purpose:	Explains the limits on inspection activities under the Appropriations Act.
Scope:	OSHA-wide.
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

 

 

 

 

TABLE OF CONTENTS

 

 

 

ABSTRACT

I. Purpose.

II. Scope.

III. References.

IV. Cancellation.

V. Action.

VI. Federal Program Change.

VIII. Key Terms.

IX. General Enforcement Guidelines.

Table 1 Exceptions and Limitations

X. Enforcement Guidance for Small Farming Operations.

XI. Enforcement Guidance for Small Employers in low-hazard industries.

XII. Late Discovery of Exemption.

XIII. IMIS.

Appendix A SIC CODES FOR INDUSTRIES WITH A LOST WORKDAY
INJURY RATE BELOW THE NATIONAL PRIVATE SECTOR
RATE OF 3.4 FOR 1995.

INDEX



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.

III. References.

A. OSHA Instruction STP 2.22A, May 14, 1986, the State Plan Policies and Procedures Manual.

 

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.

VI. Federal Program Change. This instruction describes a Federal program change which affects State programs. Each Regional Administrator is to:

 

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 requested.

 

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 matching funds.

 

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 activities.

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 farming operations.

 

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 manual.

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.

 

Table 1
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 months.

 

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 OSHA.

 

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 current employees.

 

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

 

b. Penalties may only be assessed when such violations are classified as willful violations or failure to abate notifications which are related to the original complaint.

 

3. Take any action authorized by the Act with respect to alleged imminent danger situations.

 

4. Take any action authorized by the Act with respect to HEALTH HAZARDS.

 

a. Health inspections are to 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 programmed safety inspections shall not be cited or referred for later inspection unless such violations create an imminent danger.

 

Note: A Compliance Officer can discuss non-citable violations during the closing conference and provide information relating to consultation services.

 

5. 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 related to the accident.

 

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.

 

A. If already issued, but not yet contested, any such citation or proposed penalty shall be withdrawn.

 

B. 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.

 

C. If such citations and penalties have become a final order, the Area Director shall ensure that no penalties are collected.

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 instructions.


 

 

Appendix A

 

 

SIC CODES FOR INDUSTRIES WITH A LOST
WORKDAY INJURY RATE BELOW THE NATIONAL
PRIVATE SECTOR RATE OF 3.4 FOR 1995

 

 

 

 

 

 

 

FISHING MINING CONSTRUCTION SERVICES		MANUFACTURING		TRANSPORTATION PUBLIC UTILITIES	TRADE	FINANCE REAL ESTATE INSURANCE
0110*	2100	2672	3546	4010	5020	6000-8900
0740	2210	2675	3563	4140	5040	EXCEPT
0760	2220	2700	3570	4480	5060	6510
1310	2251	EXCEPT	3613	4520	5070	6550
1320	2253	2732	3625	4600	5080	7010
1530	2259	2745	3629	4720	5110	7020
	2262	2759	3635	4740	5120	7030
	2282	2789	3641	4800	5130	7040
	2284	2800	3652	EXCEPT	5150	7210
	2310	EXCEPT	3660	4840	5160	7340
	2321	2816	3670	4910	5170	7540
	2323	2851	EXCEPT	4920	5230	7630
	2329	2875	3671	4930	5250	7690
	2330	2899	3691		5260	7940
	2340	2910	3695		5270	7990
	2350	3140	3699		5390	8030
	2361	3160	3721		5400	8050
	2370	3170	3724		EXCEPT	8060
	2380	3190	3760		5410	8080
	EXCEPT	3275	3795		5500	8330
	2384	3295	3800		EXCEPT	8360
	2391	3331	3910		5530	8420
	2395	3463	3930		5600
	2397	3482	3942		5720
	2436	3483	3951		5730
	2591	3489	3953		5800
	2610	3533	3955		5900
	2620	3544	3960		EXCEPT
	2630	3545	3996		5960
	2655				5980

* 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.


 

 

INDEX

 

Accident 1, 2, 3,

 

Agriculture 1, 2, 3

Bureau of Labor Statistics 1

Citation 1

Classification 1

Closing Conference 1

Consultation 1, 2

Employee 1, 2, 3, 4

Employer 1, 2, 3, 4, 5, 6, 7

Enforcement 1

ESA 1, 2, 3

Failure to Abate 1

Farming operation 1, 2, 3, 4

Health hazards 1

Imminent Danger 1, 2

LWDI 1

Penalties 1, 2, 3, 4, 5, 6

Penalty 1

Review Commission 1

State Plan 1

State Programs 1

Temporary Labor Camp 1, 2, 3, 4, 5, 6, 7, 8

Violation 1

 

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