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OSHA Instruction STP 2-1.138 Office of State Programs

Subject: Field Sanitation; Final Rule

A. Purpose. This instruction informs the Regions and State designees that the Occupational Safety and Health Administration (OSHA) has issued a final rule, which amends Title 29 of the Code of Federal Regulations, Part 1928, by adding a new final occupational safety and health standard entitled "Field Sanitation" (1928.110).

B. Scope. This instruction applies OSHA-wide.

C. Federal Program Change. This instruction describes a Federal program change which affects State programs. Each Regional Administrator shall:

1. Ensure that this instruction is forwarded to each State designee.

2. Provide a copy of the Federal Register notice to the State designee upon request.

3. Explain the technical content of the Federal Register notice at 52 FR 16050, May 1, 1987, "Field Sanitation; Final Rule," to the State designee upon request.

4. Ensure that each State designee acknowledges receipt of this instruction in writing, within 30 days of notification, to the Regional Administrator. The acknowledgment should include (a) the State's plan to adopt and implement the standard, (b) the State's plan to develop an alternative standard, which is as effective, or (c) the reasons why no standard is necessary to maintain a program which is as effective.

5. Inform each State designee that the State must promulgate a standard within 6 months of the date of Federal publication that is "at least as effective" as the new 29 CFR 1928.110, and submit a plan supplement to the Regional Administrator. The State may delay the effective date for those particular provisions of its standard for which the comparable Federal provisions delay effective dates; however, the delayed effective date of a State provision may be no later than the effective date of the comparable Federal provisions.

OSHA Instruction STP 2-1.138 SEP 21 1987 Office of State Programs

6. Inform the State designee that those States which adopted a Field Sanitation standard in response to Secretary Brock's October 1985 request will need to submit a formal plan change supplement to OSHA for approval. Any different State standards should be submitted to the Regional Administrator in accord with OSHA Instruction STP 2-1.117, "State Standards."

D. Interim Enforcement. Under 29 CFR 1953.23(a) and (b), State plan States are provided up to 6 months from publication of the Federal standard in the Federal Register to promulgate an identical or "at least as effective" as standard. If a State, for whatever reason, is unable to promulgate a standard in a timely manner (6 months for a permanent standard, 30 days for an emergency temporary standard), the State shall be expected to provide assurance that it will enforce the substantive provisions of the new or revised Federal standard through such means as use of its general duty clause or equivalent, temporary adoption of an identical standard or an alternative, specified enforcement mechanism. Until such time as a State OSHA standard is promulgated and in effect, Federal OSHA will provide interim enforcement assistance, as appropriate.

E. Different State Standards. Section 18(c) (2) of the OSH Act requires that State standards be "at least as effective" as the Federal and, when applicable to products used or distributed in interstate commerce, the standards must be required by compelling local conditions and not unduly burden interstate commerce. In addition to the "at least as effective" criterion, this "product clause test" will be applied to State standards with substantively different requirements from the comparable Federal standards, as discussed in OSHA Instruction STP 2-1.117.

F. Effect of Standards on States. For States that do not have OSHA-approved plans, OSHA intends this standard to pre-empt State occupational field sanitation standards, insofar as they regulate working conditions on farms with 11 or more employees. However, the pre-emption provisions of section 18 of the OSH Act do not apply to non-plan State field sanitation standards, insofar as they regulate farms with fewer than 11 employees, because under the current Congressional prohibition

OSHA Instruction STP 2-1.138 SEP 21 1987 Office of State Programs

OSHA itself has no authority to promulgate or enforce a standard applicable to such small farms. In addition, nothing in the Occupational Safety and Health Act precludes a State or local entity from issuing standards which are directed predominantly at public health considerations and enforced for that purpose.

G. Explanation.

1. The definition of "scope" in the standard differs somewhat from OSHA's current appropriation limitation which prohibits the use of Federal funds "to prescribe, issue, administer or enforce any standard, rule, regulation or order.. 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." The standard applies to farms where 11 or more workers are engaged in hand labor operations in the field on any given day and was so drafted to provide protection to those agricultural employees who are actually exposed to field hazards. Evidence on the record indicates that the risk of exposure to some diseases, e.g., parasitism, is directly related to the number of hand laborers in the field. Therefore, it was determined that the standard should not be applied to that group of small farms which technically could be covered under the terms of the appropriation limitation. However, States are free to expand the scope of their standards to farms of any size that maintain a temporary labor camp. (State plan States may also extend their coverage to all small farms but may not use Federal funds for that purpose.)

2. In promulgating a final Field Sanitation standard, in response to public comment, OSHA made determinations on several provisions which had previously been raised as issues for discussion. These included use of moist towelettes, providing transportation to and from facilities, and toilet ratios.

OSHA Instruction STP 2-1.138 SEP 21 1987 Office of State Programs

H. Background.

1. This final rule amends Title 29 of the Code of Federal Regulations, Part 1928, by adding a new final occupational safety and health standard entitled "Field Sanitation," Part 1928.110. This standard requires employers of 11 or more hand laborers in the field to provide toilets, potable water and handwashing facilities in the field without cost to those employees. The final Field Sanitation standard was published in the Federal Register on May 1, 1987. An estimated 471,600 hired farm workers will be covered by this standard. Many of these workers are migrant workers, who may contract and pass on communicable diseases as they move from area to area and State to State.

2. In September 1985, the Secretary announced a decision, based on "the clear evidence in the record to date" in OSHA's field sanitation rulemaking, that further regulation was required to deal with farm field hand laborers' health problems resulting from the inadequate provision of sanitary facilities and drinking water at their worksites.

3. Federal action was deferred for 18 months to allow the States time to provide the needed regulation in the belief that "State action responsive to this need would be preferable to, and more effective than, Federal action." (States already regulate extensively in the public health area to which much of the field sanitation problem relates; Congress has precluded OSHA from adopting or enforcing standards that are applicable to farms with 10 or fewer workers where the majority of hand laborers work.)

4. On February 6, 1987, the U.S. Court of Appeals for the District of Columbia Circuit ordered the Secretary of Labor (in Farmworkers Justice Fund v. Brock) to issue a Federal occupational safety and health field sanitation standard within 30 days of the issuance of its mandate.

OSHA Instruction STP 2-1.138 SEP 21 1987 Office of State Programs 5. On March 9, the Secretary announced his preliminary determination that the Department of Labor's Occupational Safety and Health Administration would issue a field sanitation standard on or about April 21. At that time, the Secretary also announced that the Department had petitioned the Court for a rehearing of the case. The Department's petition addressed issues of general administrative law. On May 7, the Court vacated its decision and dismissed OSHA's petition as being moot, since the Occupational Safety and Health Administration had promulgated a final Field Sanitation standard on May 1, 1987.

6. OSHA published its final Field Sanitation standard in the Federal Register on May 1, 1987. The decision by the Secretary of Labor to issue a final field sanitation standard was based on an assessment that an insufficient number of States had responded to his October 1985 request that States adopt field sanitation requirements.

John A. Pendergrass Assistant Secretary

DISTRIBUTION: National, Regional and Area Offices State Designees

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