July 30, 1990

MEMORANDUM FOR: LINDA R. ANKU

THROUGH: LEO CAREY, DIRECTOR OFFICE OF FIELD PROGRAMS

FROM: PATRICIA K. CLARK DIRECTOR DESIGNATE DIRECTORATE OF COMPLIANCE PROGRAMS

SUBJECT: Applicability of Field Sanitation Standard to Reforestation Activities

This is in response to your letter of January 25, addressed to Tom Shepich, former Director, Directorate of Compliance Programs, in which you requested, on behalf of the Commonwealth of Virginia, the basis upon which this Directorate determined that the Field Sanitation Standard (29 CFR 1928.110) is applicable to reforestation activities. Please excuse the delay in our response.

As you may be aware, we review the reforestation issue and concluded, in our November 6, 1989 memorandum to you (copy enclosed), that where reforestation activities involve "hand-labor operations" as defined in the standard, the provisions of the field sanitation standard are applicable. We based that decision on several facts. First, reforestation is similar to other agricultural field operations. Second, several courts have held that employees engaged in reforestation are covered by remedial legislation for the protection of agricultural workers. For example, the Ninth Circuit held in Bresgal v. Brock, 833 F.2d 763 (1987) that such workers are agricultural employees for the purposes of the Migrant and Seasonal Agricultural Workers Protection Act. In dictum, the Eleventh Circuit came to the same conclusion in Davis Forestry Corp. v. Smith, 707 F. 2d 1325, 1328 n. 3 (1983). Third, hand-labor operations, the most common method of performing reforestation activities, are explicitly covered in the scope of the Field Sanitation Standard.

The Agency's current position was developed through extensive intra-agency discussions. Our interpretation that the reforestation activity involving hand-labor operations in the field is covered under the relevant provisions of the Field Sanitation Standard was intended to provide, in the absence of a clear and unambiguous exemption of this activity from the provisions of the standard, the broadcast possible coverage for these workers.

If we can be further assistance, please feel free to contact James C. Dillard, of my staff, at (FTS) 523-8041.

Enclosure