July 22, 1992

This is in response to your memorandum of the same subject, dated August 30, 1991. Please accept our apology for the excessive delay in responding to your request.

Your original request was for a determination of whether small nursery operations (10 or fewer employees over the previous 12 months and no temporary labor camp operations) should be considered as small farms under the appropriations rider. Your request occasioned a general review of our interpretation of the farming rider. A discussion of the general application of the farming rider is followed by discourse regarding the specific question of nurseries.

The farming rider provides:

. . . That none of the funds appropriated under this paragraph [OSHA funds] 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 . . .

Public Law 102-170; November 22, 1991, 105 Stat. 1107.

The phrase which is the focus here is "any person who is engaged in a farming operation." We have determined that in order for a small employer(1) to be exempt from OSHA Act enforcement under this rider with respect to any violations found, it must meet two tests. First, the small employer must be in an agricultural SIC code (Major Groups 01, 02, and 07). Second, the alleged violations must involve activities set forth in the agricultural SICs. Thus, if the small employer is only engaged in agricultural operations it is exempt from enforcement. If the small employer is primarily engaged in agricultural operations but has some non-agricultural operations, the agricultural operations are exempt from enforcement but the non-agricultural operations are not exempt. If the small employer is not primarily engaged in agricultural operations but has some agricultural operations, it is not exempt from enforcement, even with respect to the agricultural operations.

This analysis can be applied to nurseries. The Standard Industrial Classification Manual lists three categories relating to nursery operations, as follows:

SIC 0181 Ornamental Floriculture and Nursery Products

Establishments primarily engaged in the production of ornamental plants and other nursery products, such as bulbs, florists' greens, flowers, shrubbery, flower and vegetable seeds and plants, and sod. These products may be grown under cover (greenhouse, frame, cloth house, bath house) or outdoors.

Bedding plants, growing of Bulbs, growing of Field nurseries: growing of flowers and shrubbery, except forest shrubbery Florists' greens, cultivated: growing of Flowers, growing of Foliage, growing of Fruit stocks, growing of Greenhouses for floral products Mats, preseeded: soil erosion - growing of Nursery stock, growing of Plants, ornamental: growing of Plants, potted: growing of Rose growers Seeds, flower and vegetable: growing of Shrubberies, except forest shrubbery: growing of Sod farms Vegetable bedding plants, growing of

SIC 5193 Flowers, Nursery Stock, and Florists' Supplies

Establishments primarily engaged in the wholesale distribution of flowers, nursery stock, and florists' supplies.

Florists - wholesale Flowers and florists' supplies - wholesale Flowers, artificial - wholesale Flowers, fresh - wholesale Nursery stock - wholesale Plants, potted - wholesale

SIC 5261 Retail Nurseries, Farm and Garden Supply Stores

Establishments primarily engaged in selling trees, shrubs, other plants, seeds, bulbs, mulches, soil conditioners, fertilizers, pesticides, garden tools, and other garden supplies to the general public. These establishments primarily sell products purchased from others, but may sell some plants which they grow themselves. Establishments primarily engaged in growing trees (except Christmas trees), shrubs, other plants, seeds, and bulbs are classified in Agriculture Major Group 01 and those growing Christmas trees are classified in Industry 0811.

Christmas trees (natural) - retail Garden supplies and tools - retail Lawnmowers - retail Nursery stock, seeds and bulbs - retail Power mowers - retail Sod - retail Soil, top - retail

Employers operating in SIC 0181 are farmers, but those in SIC 5193 and 5261 are not engaged in farming operations within the meaning of the rider.

Thus, if the small employer is totally engaged in the production of ornamental plants or other nursery products (SIC 0181), it is totally exempt from OSHA enforcement under the rider. If the small employer is primarily engaged in the production of ornamental plants or other nursery products, but is also engaged in other operations, such as selling nursery products grown by others at retail, the former operations are exempt from enforcement but the latter are subject to enforcement. If the small employer is not primarily engaged in the production of ornamental plants or other nursery products, but does engage in some such production, it is subject to OSHA enforcement, even with respect to the production of ornamental plants or other nursery products.

It should be pointed out that, in general, agricultural operations, as we interpret them for the purpose of the rider, include not only the preparation of ground, sowing, watering of plants, feeding of plants, weeding, spraying, harvesting, and the raising of livestock, but also all activity necessary for these operations, such as the repair or maintenance of equipment used in these operations, and all activity necessary to gaining economic value from the agricultural products themselves, e.g., selling the products grown by the employer in question. For example, the growing and selling of one's own apples are agricultural operations, but making cider or jelly from the apples is not an agricultural operation.

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(1) In this memorandum, the term "small" means that the employer has ten or fewer employees and does not have a temporary labor camp.



August 30, 1991

The Cincinnati Area Office began an investigation of a fatal accident which occurred in a greenhouse at a nursery on August 8, 1991. On August 13, the area office contacted the Chicago regional Office with a question regarding the exemption under the appropriations rider for farming operations.

We contacted Compliance Programs in the person of Don Kallstrom to determine if the nursery was in fact a farming operation and thus exempt under the rider. We provided Mr. Kallstrom with the information that the nursery purchases some of the plants and grows others, notably the flowers and ground cover. Mr. Kallstrom contacted the National Solicitors Office, in the person of Dan Mick, and provided us with the interpretation that because they were growing crops, they were covered under the exemption. (There was no question that the nursery employed less than 10 people, and did not maintain a migrant labor camp.)

This raises a question regarding coverage under the rider on farm operations for nurseries. On one end of the spectrum are those nurseries that grow all of the plants that are eventually distributed to sales outlets. These are pretty obviously farm operations. On the other end of the spectrum are those nurseries that purchase all of their plants and resell them. These are obviously retail outlets and not covered under the farm exemption. Most nurseries fall somewhere in the middle, purchasing some plants and growing others. At what point of the spectrum does the farm exemption become applicable?