April 12, 1988

Ms. Linda M. Jones
Executive Director
Wyoming/Colorado Agricultural
Employers Association
811 North Glenn Road, Box 115
Casper, Wyoming 82602

Dear Ms. Jones:

This is in response to your letter of March 9, requesting an interpretation of the OSHA Temporary Labor Camp Standard (29 CFR 1910.142) regarding range production of livestock.

As you point out, the regulation states that "the principal camp area in which food is prepared and served and where sleeping quarters are located shall be at least 500 feet from any area in which livestock is kept." Unfortunately, the wording of the temporary housing standard does not adequately provide for the exigencies of certain agricultural-type pursuits such as sheep ranching. You state that this type of enterprise, in which temporary activities such as shearing, lambing and kidding and medication of the animals are performed, must be handled in enclosures closer than the 500 feet minimum.

The purpose of the 500 feet setback is sanitary. In cases where livestock are generally kept for protracted periods of time in enclosures closer than 500 feet to sleeping and food preparation areas, a potential health hazard to employees exists. In the case of sheep ranching where the animals customarily range over very large tracts of land, the animals are not kept in enclosures except in the circumstances indicated above. Proximity of the animals to the workers, particularly in the case of ailing animals that require close supervision, is an important aspect of the animal ranching operation.

The purpose of OSHA standards is to ensure health and safety of the working population. When it is difficult for an employer to adhere to certain stipulations of a standard because of the inherent nature of his operation, an evaluation of the health and safety repercussions is necessary. If it can be demonstrated that no significant risk to workers' health and safety would occur as a result of a nonconforming activity, then the situation may be judged to be "de minimis" and no citation of the aberrant activity will be issued.

It appears that the temporary housing of sheep for the purposes cited in your letter (medication of animals, shearing and lambing and kidding) should not adversely affect the health and safety of workers and would be considered a "de minimis" activity under 1910.142(a)(2).

For the members of your organization in the State of Wyoming, please be advised that this interpretation of the OSHA Temporary Labor Camp Standard refers to those states that are part of the Federal system. Since Wyoming is a State Plan State under OSHA, this interpretation is applicable in Wyoming if the State authorities choose to accept it. A copy of this letter is being sent to The OSHA Regional Administrator in Denver, Mr. Byron Chadwick, and to Mr. John Chambers, the Assistant Administrator of the Wyoming Department of Occupational Safety and Health in Cheyenne. You may wish to contact these parties regarding the status of the interpretation in this letter as applied to sheep ranch employers in Wyoming.

Sincerely,



John A. Pendergrass
Assistant Secretary




March 9, 1988

John A. Pendergrass
Assistant Secretary
Occupational Safety and Health Administration
United States Department of Labor
Room S2315
200 Constitution Avenue, N.W.
Washington, DC 20210

Dear Mr. Pendergrass:

Members of the Wyoming-Colorado Agricultural Employers Association are preparing to file Applications for Alien Labor Certification and Interstate Clearance Orders under the H-2A provisions of the Immigration Reform and control Act of 1986. The U.S. Department of Labor's regulations governing the H-2A program require that employers offer housing meeting OSHA standards at 29 CFR 1910.142. The Regulations further provide that housing for workers principally engaged in the range production of livestock shall meet standards established by OSHA for such housing. OSHA has not yet promulgated housing standards for workers principally engaged in the range production of livestock.

In examining the OSHA Regulations at 29 CFR 1910.142 there is one provision that conflicts directly with the requirements of sheep ranching which will prevent some of our members from complying with your agency's housing regulations and using the H-2A program. This provision requires that "the principal camp area in which food is prepared and served and where sleeping quarters are located shall be at least 500 feet form any area in which livestock is kept."

While we understand the intent behind this provision for crop workers, who have been the principal users of the H-2 program in the past, this provision is contrary to the requirements and practices of the sheep industry. On sheep ranches, it is necessary for ranch worker housing to be in close proximity to the livestock facilities. Even the housing occupied by the ranchers themselves would frequently not meet the 500 foot criteria.

Let me explain that our sheep are not typically housed, (i.e., kept permanently) in a barn or fixed structure. They normally stay on the range. They are brought into facilities such as sheds or pens for such purposes as shearing and for lambing and kidding, medicating, and treatment of sick animals, etc. Livestock facilities would usually contain livestock only for short periods, and would be unoccupied much of the year. When there are livestock in them, it is essential that ranch workers be nearby.

By this letter we are requesting that OSHA consider housing on sheep ranches in Wyoming and Colorado in compliance with your regulations if it is at least 500 feet from any area in which livestock is kept on a permanent basis. We request that the provision not be considered applicable to facilities in which livestock are kept on an occasional or short-term seasonal basis.

We are hoping to inaugurate the H-2A program at the earliest possible date. Therefore, we would appreciate your action on this request as quickly as possible.

Thank you in advance for your prompt consideration of this request. We will be glad to discuss this matter with you or answer any questions you may have.

Sincerely yours,



Linda M. Jones
President

Fred Roberts
Executive Director