OSHA Instruction CPL 2-2.42 June 22, 1992 Office of General Industry Compliance Assistance

Subject: Guidelines for Implementing the Field Sanitation Standard

A. PURPOSE. This instruction provides guidelines for the inspection of agricultural establishments covered by the Field Sanitation Standard, 29 CFR 1928.110.

B. SCOPE. This instruction applies OSHA-wide.

C. REFERENCES.

1. 29 CFR 1928.110, Field Sanitation Standard (52 FR 16050-16096, May 1, 1987).

2. OSHA Instruction CPL 2.45B, June 15, 1989, the Revised Field Operations Manual (FOM).

3. OSHA Instruction ADM 1-1.12B, December 29, 1989, the Integrated Management Information System (IMIS) Forms Manual.

D. ACTION. Regional Administrators and Area Directors shall ensure that the procedures established in this instruction are adhered to for field sanitation inspections.

E. FEDERAL PROGRAM CHANGE. This instruction describes a Federal program change which affects State programs. Each Regional Administrator shall:

1. Ensure that this change is promptly forwarded to each State designee, using a format consistent with the Plan Change Two-Way Memorandum in Appendix P, OSHA Instruction STP 2.22A, CH-2.

2. Explain the technical content of this change to the State designee as requested.

3. Ensure that State designees are asked to acknowledge receipt of this Federal program change in writing to the Regional Administrator as soon as the State's intention is known, but not later than 70 calendar days after the date of issuance (10 days for mailing and 60 days for response). This acknowledgment should include the State's intention to follow the guidelines in section H. for training and education of compliance personnel and section I. for scheduling procedures as described in this instruction, or a description of the State's alternative guidelines which are "at least as effective" as the Federal guidelines.

a. If a State intends to follow the guidelines for training and education and scheduling procedures as described in this instruction, the State must submit either a revised version of this instruction, adapted as appropriate to reference State law, regulations and administrative structure, or a cover sheet describing how references in this instruction correspond to the State's structure. The State's acknowledgment letter may fulfill the plan supplement requirement if the appropriate documentation is provided.

b. Any alternative State guidelines for training and education and scheduling procedures must be submitted as a State plan supplement within 6 months. If the State adopts an alternative to Federal inspection guidelines, the State's submission must identify and provide a rationale for all substantial differences from Federal guidelines in order for OSHA to judge whether a different State guideline is as effective as a comparable Federal guideline.

4. Inform the State designees that they shall include in their acknowledgment letter to the Regional Administrator whether they are conducting inspections of any farming operation that presently has, and has had at all times during the preceding 12 months, 10 or fewer employees and does not maintain an active temporary labor camp. If so, the State shall provide a plan to the Regional Administrator to fund the prohibited activities with other than 23(g) funds. (This restriction initially placed on OSHA in FY 1977 has been continued by the current Appropriations Act.)

5. After Regional review of the State plan supplement and resolution of any comments theron, forward the State submission to the National Office in accordance with established procedures. The Regional Administrator shall provide a judgment on the relative effectiveness of each substantial difference in the State plan change and an overall assessment thereon with a recommendation as to approval or disapproval by the Assistant Secretary.

6. Review policies, instructions and guidelines issued by the State to determine if this change has been communicated to State program personnel.

F. BACKGROUND. OSHA has promulgated several sanitation standards for the protection of the safety and health of agricultural workers prior to the Field Sanitation standard.

1. These standards are found in both OSHA General Industry Standards, 29 CFR 1910, and in the Occupational Safety and Health Standards for Agriculture, 29 CFR 1928.

2. The major weaknesses of these standards are their lack of rules for sanitation facilities in the field for hired farm workers, many of whom are migrant workers. Without adequate sanitation, such workers may contract and pass on communicable diseases as they move from area to area and State to State while providing hand labor to cultivate and harvest food and fiber.

3. The final Field Sanitation Standard was published in the Federal Register on May 1, 1987. This final rule amended Title 29 CFR, Part 1928, by adding a new final occupational safety and health standard entitled "Field Sanitation", Part 1928.110.

4. Since the effective date of the Field Sanitation Standard on May 30, 1987, a number of questions and concerns on the part of both agricultural employee and employer organizations have arisen related to the enforcement of the standard.

a. Employee advocacy organizations have raised concerns about OSHA's understanding of the scope provisions of the standard as well as compliance policies affecting response time to complaints, targeting of inspections during peak and non-peak periods of planting and harvesting of crops and fibers, classification of violations and related proposed penalties, and inspection followups.

b. Employer organizations have expressed concerns about OSHA's interpretation of the scope of coverage of the standard and its application to field situations where fewer than 11 employees are engaged in hand-labor operations on the day of the inspection.

G. APPROPRIATIONS RESTRICTIONS AND SCOPE OF STANDARD.

1. Current appropriations law, as outlined in OSHA Instruction CPL 2.51G, exempts from OSHA regulation farming operations that employ 10 or fewer employees and do not maintain a temporary labor camp. OSHA has consistently interpreted this appropriations restriction as permitting OSHA regulation of any farming operation that has employed 11 or more employees on any given day during the 12 months preceding the inspection. The appropriations law specifically permits OSHA to regulate any farming operation that maintains a temporary labor camps, regardless of the number of employees.

2. OSHA affirms, therefore, that the standard applies to any agricultural establishment or employer that has employed, during the previous 12 months, at any one time, eleven (11) or more employees engaged in hand- labor operations in the field. This coverage applies regardless of the location(s) of the field(s) and regardless of the number of employees in any particular field or the number of employees engaged in hand-labor operations in the field on the day of inspection.

H. TRAINING AND EDUCATION OF OSHA PERSONNEL. Regional Administrators shall ensure that all CSHOs are trained in the Field Sanitation Standard and this instruction prior to conducting field sanitation inspections.

1. The entire preamble to the standard, in addition to the standard itself, shall be used as the basis of the training and CSHOs shall be familiar with its contents.

It contains a full discussion of the record upon which the final standard was based, and OSHA's interpretations and intentions about the meaning of the individual requirements of the standard. In order to ensure an adequate understanding of the standard and encourage consistent enforcement, particular attention shall be given during training to the following:

a. Scope of the standard;

b. Definitions, especially agricultural employer, agricultural establishment, and hand-labor operations;

c. Requirements for drinking water, toilet and handwashing facilities.

2. Continued training shall be provided, on a regular basis, to field sanitation enforcement personnel from the Employment Training Administration (ETA), Employment Standards Administration (ESA), and those agencies working under the 7(c)(1) agreements.

I. SCHEDULING PROCEDURES.

1. The procedures outlined in the FOM for programmed inspections in general industry, construction, and maritime employment cannot be used in scheduling inspections of applicable agricultural establishments employing hand-labor operations in the field.

a. These operations tend to be seasonal and of short duration. Some variables which may affect the scheduling and inspection of these operations include types and location of crops, duration and season.

b. For these reasons, inspection scheduling procedures as found in Chapter II, E.2.b.(5) of the FOM shall be followed to obtain information on the location of sites potentially available for inspection.

c. All compliance personnel shall be instructed to look for hand-labor operations in the field when in rural areas where such operations are expected to be in progress.

d. Each observation of such operations shall be handled in the following manner:

(1) During the peak period of planting or harvesting of crops or fibers, the CSHO making the observation shall initiate an inspection of the operation if one or more employees engaged in hand-labor operations are observed in the field.

(a) During the opening conference, if it is determined that the scope of coverage is applicable to the operation, the CSHO shall proceed with the inspection; otherwise the inspection shall terminate.

(b) The Area Director may define the circumstances under which inspections based on CSHO observations of employees in the field must be cleared by the supervisor.

(c) The inspection shall be initiated at the earliest possible time, depending on the local inspection priorities.

(2) During non-peak periods of planting or harvesting, the CSHO making the observation shall initiate an inspection of the operation only if five (5) or more employees engaged in hand-labor operations are observed in the field(s). The other restrictions as outlined in I.1.d. (a)-(c) apply.

(3) If contact with an employer is made, but no inspection is conducted due to lack of coverage, an OSHA-1 shall be filled out and marked "No Inspection."

NOTE: All of the above inspections shall be recorded as programmed if the observing CSHO makes the inspection; otherwise, they shall be recorded as referrals.

2. All complaints/referrals received concerning alleged violations of the Field Sanitation Standard shall be processed by the Area Office as quickly as priorities permit, because of the short duration of these operations. Due consideration shall also be given to available resources.

3. If a denial of entry occurs, a warrant may be sought.

a. The Area Director shall consider factors such as the following before processing a warrant application:

(2) Anticipated duration of the hand-labor field operation;

b. In those instances where denial of entry is the known policy of a given employer, a preinspection warrant should be obtained by the Area Director.

J. CLASSIFICATION OF VIOLATIONS.

1. Failures to comply with the standard's requirements to supply water or sanitation facilities in the field, especially during peak planting or harvesting periods, generally shall be classified as serious violations. Violations will be classified as other-than-serious only when it is clear that the failures to comply are minimal or that, under the conditions in the particular field, the hazards to be controlled by compliance are minimal.

a. A failure to comply would be minimal, for example, when an employer provided a single toilet (at an appropriate place in the field) for 21, instead of 20 employees.

b. Conditions in the field could minimize the relevant hazards, when, for example, an employer failed, during cold weather, to provide adequate potable water in a field where toxic agrichemicals had not recently been applied.

2. The classification of safety and health violations involves the exercise of maximum professional judgment. All relevant factors must be carefully considered when making classification decisions.

K. ABATEMENT OF VIOLATIONS. Due to the short duration of hand- labor field operations the abatement period shall be the shortest possible interval, with particular emphasis given to immediate abatement.

L. FOLLOW-UP INSPECTIONS. Due to the short duration of field activities, field sanitation followup inspections cannot be scheduled in the manner provided in the FOM. Regional Administrators shall implement procedures that will ensure that at least five percent (5%) of field sanitation inspections resulting in serious citations receive followup inspections.

M. 7(c)(1) AGREEMENTS. In States where the 7(c)(1) program has responsibility for conducting migrant farm-worker camp inspections, the program participants shall be encouraged to perform inspections under the Field Sanitation Standard where funding is available.

N. RECORDING IN IMIS. Current instructions for completing the Inspection Report, OSHA-1, as found in the IMIS Manual shall be used with the following additional instructions:

1. The OSHA-1, Item 24 shall be marked as appropriate.

2. The OSHA-1, Item 25 "National Emphasis Program" will be marked and "FIELDSAN" entered in the "specify field" for all field sanitation inspections.

NOTE: The field sanitation inspections are not National Emphasis Program inspections, but the above entry is required due to the lack of an additional field under Item 25 at this time.

Dorothy L. Strunk Acting Assistant Secretary

DISTRIBUTION: National, Regional and Area Offices All Compliance Officers State Designees 7(c)(1) Project Managers NIOSH Regional Program Directors