Posted in Daily
Tom Perez’s Labor enforcers go after the family farm.
Updated Jan. 2, 2014 4:23 p.m. ET
Watching Team Obama habitually assert that it can rewrite the Affordable Care Act on the fly, one wonders whether anyone in the executive branch still believes in following the law. Don’t look to the Occupational Safety and Health Administration (OSHA) for reassurance.
Since the 1970s, annual federal appropriations bills have explicitly prohibited the federal workplace overseer from descending on small family farms. Specifically, OSHA does not have jurisdiction over “farming operations” with 10 or fewer employees.
But OSHA officials have found a novel way to circumvent this statutory restraint. The regulators have simply claimed the authority to rewrite the definition of farming. A remarkable 2011 memo from OSHA’s enforcement chief to regional administrators at first acknowledges that the law prevents the agency from regulating small farms engaged in growing and harvesting crops and any “related activities.” But then the memo proceeds to instruct employees on how to re-categorize small farms as commercial grain handlers. So OSHA inspectors have recently begun to descend on family farms, claiming the authority to regulate their grain storage bins.
This has inspired the normally mild-mannered Sen. Mike Johanns (R., Neb.) to take to the Senate floor recently to condemn OSHA’s “absolutely incredible” and “absurd” position, which he called “a blatant overreach in violation of the law.”
Mr. Johanns grew up on a farm and pointed out that “every farm has grain storage.” That’s because it’s not practical and at times nearly impossible to sell all of a crop the moment it is harvested. Without grain storage, farmers would be forced to immediately unload everything they grow and therefore have to accept lower prices.
Assistant editorial page editor James Freeman on the Occupational Safety and Health Administration’s extralegal attempt to expand its powers.
Mr. Johanns said that a small Nebraska farm with only one non-family employee was recently visited by OSHA inspectors and fined more than $130,000 even though “OSHA made no claim that anyone had been hurt.”
Although he didn’t name names, Mr. Johanns was almost certainly referring to Niobrara Farms. Attorneys for this family operation recently wrote to Nebraska lawmakers and reported that OSHA has issued citations “for such things as failing to have a written plan to control fugitive grain dust” in grain storage bins.
OSHA says the case is still being litigated and can’t comment in detail, but it maintains that the grain storage was “geographically separate” from the farm. It’s not clear why this would give a small farmer any less protection under the law. But in any case James Luers, attorney for Niobrara Farms, says that the storage bins are within a quarter mile of where the crops are grown.
The man who runs OSHA is Assistant Secretary of Labor for Occupational Safety and Health David Michaels. He tells us that the agency takes the Congressional exemption for small farms “very seriously” and that he’s happy to work with Mr. Johanns. But when pressed to affirm that grain storage located on a small farm remains exempt under the law, Mr. Michaels declined to do so. “It’s more complicated,” he said in a telephone interview. “We’d have to look at the case.”
Perhaps someone should have looked at OSHA’s case against Ohio’s Haerr Grain Farms before issuing citations. This is another case without even an allegation that anyone has been harmed. According to co-owner Scott Haerr, the father-son partnership has one full-time employee and the grain storage occurs at the same location as the farm—not that farmers shouldn’t be free to store their property wherever they want.
Mr. Haerr says two OSHA inspectors showed up at harvest time this year without warning. When he asked why they were there, he says he was told, “We don’t bother family farms.” Mr. Haerr responded that his operation was a family farm, to which one inspector responded, “Well, you have an employee.”
To review, OSHA inspectors are specifically barred under the law from setting foot on farms with 10 or fewer employees. But the act of creating a job in agriculture apparently now makes one eligible for an extra-legal federal investigation. Is this the Obama economic plan for 2014? In a later meeting with an OSHA official, Mr. Haerr’s attorney asked where OSHA’s jurisdiction ended on a farm like his. Mr. Haerr says there was no clear answer, other than an assurance that the agency would not regulate anything inside his house.
This week the Haerrs formally contested OSHA’s claims, and they feared that like the Niobrara Farms owners they would have to make their case before an administrative law judge at the Department of Labor. But Mr. Haerr tells us that late Monday he got a call from OSHA saying the agency was withdrawing all citations against the farm. That was about two hours after we had contacted OSHA asking for comment on the case.
Mr. Johanns has already persuaded a bipartisan Senate coalition of 42 colleagues to urge Labor Secretary Thomas Perez to instruct OSHA to cease all actions based on its bogus interpretation of the statute. We’d say all 100 Senators should agree on the proposition that federal agencies should follow the law.