Alaska, Indiana, Iowa, Kentucky, Minnesota, South Carolina, Utah, Virgin Islands and Wyoming State Plans; Approval of Plan Supplements; Changes in Level of Federal Enforcement

Federal RegisterJan 17, 1997

Ask Donna

What actually matters in this document.

Text

DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1952

Alaska, Indiana, Iowa, Kentucky, Minnesota, South Carolina, Utah,

Virgin Islands and Wyoming State Plans; Approval of Plan Supplements;

Changes in Level of Federal Enforcement

AGENCY: Occupational Safety and Health Administration (OSHA), U.S.

Department of Labor.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This document amends OSHA's regulations to reflect the

Assistant Secretary's decision approving amendments to nine (9) State

plans to exclude coverage of the field sanitation standard and the

temporary labor camp standard as it applies in agriculture (with the

exception of temporary labor camps for employees engaged in egg,

poultry or red meat production, or the post-harvest processing of

agricultural or horticultural commodities) from their State Plans. The

States of Alaska, Indiana, Iowa, Kentucky, Minnesota, South Carolina,

Utah, Virgin Islands, and Wyoming have elected to follow the

jurisdictional transfer of authority as effected by Secretary of

Labor's Orders 5-96 and 6-96, published in the Federal Register on

January 2, 1997, between the Employment Standards Administration (ESA)

and OSHA with regard to these two OSHA standards. OSHA is hereby

amending pertinent sections of its regulations on approved State plans

to reflect this relinquishment of State jurisdiction and transfer of

OSHA enforcement authority to ESA in these nine (9) States and to

notify affected employers and employees of this action. In fourteen

(14) other States operating OSHA-approved State plans, enforcement of

the field sanitation and temporary labor camp standards in agriculture

will not transfer to ESA and will continue as a State responsibility.

(These States are: Arizona, California, Hawaii, Maryland, Michigan,

Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, Tennessee,

Vermont, Virginia and Washington). In all other States under Federal

OSHA jurisdiction, ESA will now exercise responsibility for enforcement

in agriculture of the OSHA field sanitation and temporary labor camp

standards, except as noted.

EFFECTIVE DATE: February 3, 1997.

FOR FURTHER INFORMATION CONTACT: Bonnie Friedman, Director, Office of

Information and Consumer Affairs, Occupational Safety and Health

Administration, U.S. Department of Labor, Room N3637, 200 Constitution

Avenue NW., Washington, DC 20210, (202) 219-8148.

SUPPLEMENTARY INFORMATION:

A. Introduction

Section 18 of the Occupational Safety and Health Act of 1970, 29

U.S.C. 667, provides that States which wish to assume responsibility

for developing and enforcing their own occupational safety and health

standards may do so by submitting and obtaining Federal approval of a

State plan. State plan approval occurs in stages which include initial

approval under section 18(b) of the Act and, ultimately, final approval

under section 18(e). Pursuant to section 18(e) OSHA previously

announced in the Federal Register final state plan approval and

relinquishment of concurrent Federal jurisdiction for each of the

following nine States: Alaska, Indiana, Iowa, Kentucky, Minnesota,

South Carolina, Utah, Virgin Islands, and Wyoming. Through amendments

to their State plans, these nine States have excluded coverage of the

field sanitation (29 CFR 1928.110) and temporary labor camp (29 CFR

1910.142) standards in agriculture (with the exception of temporary

labor camps for employees engaged in egg, poultry or red meat

production, or the post-harvest processing of agricultural or

horticultural commodities) from their State plans. As provided in

Secretary of Labor's Orders 5-96 and 6-96, effective February 3, 1997,

(62 FR 107-113, January 2, 1997) this authority has been subsequently

transferred from the Occupational Safety and Health Administration

(OSHA) to the Employment Standards Administration (ESA). Therefore, the

applicable subparts of 29 CFR Part 1952 are being revised to effect

this change in coverage and enforcement jurisdiction.

B. Background

Following a one year pilot project and pursuant to Secretary's

Orders 5-96 and 6-96 (62 FR 107-113), an exchange of specific

authorities and responsibilities has been effected between the

Assistant Secretary for Occupational Safety and Health and Assistant

Secretary for

[[Page 2559]]

Employment Standards, as of February 3, 1997. This is the result of a

determination that the respective agencies' program expertise would be

better utilized, and, therefore, that the Department of Labor's

resources would be more effectively and efficiently utilized, by a

permanent transfer of particular enforcement activities between the

Assistant Secretaries for OSHA and ESA. Secretary's Order 5-96

delegates to the Assistant Secretary for ESA the Secretary's authority

under sections 8, 9, and 10 of the Occupational Safety and Health Act

to conduct inspections and investigations, issue administrative

subpoenas, issue citations, assess and collect penalties, and enforce

any other remedies available under the statute, and to develop and

issue compliance interpretations under the statute, with regard to the

OSHA standards on:

(1) Field sanitation, 29 CFR 1928.110; and

(2) Temporary labor camps, 29 CFR 1910.142, with respect to any

agricultural establishment where employees are engaged in

``agricultural employment'' within the meaning of the Migrant and

Seasonal Agricultural Worker Protection Act, 29 U.S.C. 1802(3),

regardless of the number of employees, including employees engaged in

hand packing of produce into containers, whether done on the ground, on

a moving machine, or in a temporary packing shed, except that the

Assistant Secretary for OSHA retains enforcement responsibility over

temporary labor camps for employees engaged in egg, poultry, or red

meat production, or the post-harvest processing of agricultural or

horticultural commodities.

The authority of the Assistant Secretary for ESA under the OSH Act

with regard to the standards on field sanitation and temporary labor

camps does not include any other agency authorities or

responsibilities, such as rulemaking authority. Such authorities under

the statute are retained by the Assistant Secretary for OSHA.

Similarly, the Secretary's Order 6-96 delegates to the Assistant

Secretary for OSHA the authority for investigating and resolving

allegations of discriminatory actions taken by employers against

employees in violation of the requirements of the following

environmental and public health statutes (so called ``whistleblower''

protection): the Safe Drinking Water Act, the Energy Reorganization Act

of 1974, the Comprehensive Environmental Response Compensation and

Liability Act of 1980, the Federal Water Pollution Control Act, the

Toxic Substances Control Act, the Solid Waste Disposal Act, and the

Clean Air Act) which had been previously delegated to the Assistant

Secretary for Employment Standards.

State Plan States

Because OSHA standards under section 6 of the Act are in effect

with regard to the issues of field sanitation and temporary labor camp

safety and health, the principles of preemption under section 18 of the

Act continue to apply and are unaffected by the transfer of

responsibility for enforcement of these standards from OSHA to ESA.

States may adopt and enforce requirements relating to these

occupational issues only through the vehicle of an OSHA-approved State

plan.

The 23 States who had assumed responsibility for field sanitation

and temporary labor camp enforcement in the private sector under their

OSHA-approved State plans were given two options with regard to this

Federal transfer of responsibility: (1) They could follow OSHA's

example by excluding field sanitation and certain temporary labor camp

enforcement in agriculture from coverage under their State plan. OSHA

would then modify the ``Final Approval Determination,'' ``Level of

Federal Enforcement'' and the ``Changes to Approved Plans'' sections in

29 CFR Part 1952 for those State programs to note the exclusion. Nine

States [Alaska, Indiana, Iowa, Kentucky, Minnesota, South Carolina,

Utah, Virgin Islands, and Wyoming] have chosen to relinquish their

authority by submitting appropriate plan change supplements; or, (2)

States could choose to retain their OSHA enforcement responsibility for

the two standards under their State plan. In this case, ESA would not

exercise its delegated authority and would look to the State plan State

to continue to enforce the State's analogues of the temporary labor

camp and field sanitation standards. Fourteen States [Arizona,

California, Hawaii, Maryland, Michigan, Nevada, New Mexico, North

Carolina, Oregon, Puerto Rico, Tennessee, Vermont, Virginia and

Washington] have chosen to retain their OSHA enforcement responsibility

for these two standards. Under the terms of the Secretary's Orders, the

Assistant Secretary for OSHA retains the authority to monitor the

activity of State plan States with respect to field sanitation and

temporary labor camps.

Thus, the delegation of OSHA enforcement authority to ESA with

regard to standards on field sanitation and temporary labor camps will

apply in all States under Federal OSHA enforcement jurisdiction and in

those nine (9) State plan States which choose to exclude these

standards from their State Plan. OSHA (and the States) will continue to

enforce other standards that are applicable to the agriculture

industry, including the temporary labor camp standard as it applies to

employees engaged in egg, poultry or red meat production, or the post-

harvest processing of agricultural or horticultural commodities. The

whistleblower authority transferred from ESA to OSHA will be retained

Federally as it is not delegable to the State plans States.

C. Decision

29 CFR Part 1953 sets forth the procedures by which the Assistant

Secretary will review changes to State plans approved in accordance

with section 18(c) of the Act and Part 1902. Having reviewed the nine

States' plan change supplements in accordance with these procedures,

OSHA is hereby amending 29 CFR Part 1952 to reflect approval of these

amendments and other related changes with regard to enforcement

responsibility.

D. Public Participation

Under 29 CFR 1953.2(c), the Assistant Secretary may prescribe

alternative procedures to expedite the review process or for other good

cause which may be consistent with applicable laws. As these State

changes are identical to the Federal action and impose no new

responsibilities or requirements on employers, employees or the State,

no opportunity for further public comment is required.

E. Regulatory Flexibility Act

OSHA certifies pursuant to the Regulatory Flexibility Act of 1980

(5 U.S.C. 601 et seq.) that this action will not have a significant

economic impact on a substantial number of small entities. Transfer of

enforcement responsibility in these nine States will not place small

employers in these States under any new or different requirements, nor

will any additional burden be placed upon the State government beyond

the responsibilities already assumed as part of the approved State

plan.

List of Subjects in 29 CFR Part 1952

Intergovernmental relations, Law enforcement, Occupational safety

and health.

This document was prepared under the direction of Joseph A. Dear,

Assistant Secretary of Labor for Occupational Safety and Health. It is

[[Page 2560]]

issued under Section 18 of the OSH Act, (29 U.S.C. 667), 29 CFR Part

1902, and Secretary of Labor's Order No. 1-90 (55 FR 9033).

Signed at Washington, D.C. this 9th day of January 1997.

Joseph A. Dear,

Assistant Secretary.

For the reasons set out in the preamble, 29 CFR part 1952, subparts

C (South Carolina), E (Utah), J (Iowa), N (Minnesota), Q (Kentucky), R

(Alaska), S (Virgin Islands), Z (Indiana) and BB (Wyoming) are hereby

amended as set forth below:

PART 1952--[AMENDED]

1. The authority citation of Part 1952 continues to read as

follows:

Authority: Sec. 18, 84 Stat. 1608 (29 U.S.C. 667); 29 CFR part

1902, Secretary of Labor's Order No. 1-90 (55 FR 9033).

Subpart C--South Carolina

2. Section 1952.94 is amended by revising paragraph (b) to read as

follows:

Sec. 1952.94 Final approval determination.

* * * * *

(b) Except as otherwise noted, the plan which has received final

approval covers all activities of employers and all places of

employment in South Carolina. The plan does not cover private sector

maritime employment; military bases; Area D of the Savannah River Site

(power generation and transmission facilities operated by South

Carolina Electric and Gas); the enforcement of the field sanitation

standard, 29 CFR 1928.110; and the enforcement of the temporary labor

camps standard, 29 CFR 1910.142, with respect to any agricultural

establishment where employees are engaged in ``agricultural

employment'' within the meaning of the Migrant and Seasonal

Agricultural Worker Protection Act, 29 U.S.C. 1802(3), regardless of

the number of employees, including employees engaged in hand packing of

produce into containers, whether done on the ground, on a moving

machine, or in a temporary packing shed, except that South Carolina

retains enforcement responsibility over agricultural temporary labor

camps for employees engaged in egg, poultry, or red meat production, or

the post-harvest processing of agricultural or horticultural

commodities.

* * * * *

3. Section 1952.95 is amended by revising paragraph (b)(1) to read

as follows:

Sec. 1952.95 Level of Federal enforcement.

* * * * *

(b) (1) In accordance with section 18(e), final approval

relinquishes Federal OSHA authority only with regard to occupational

safety and health issues covered by the South Carolina plan. OSHA

retains full authority over issues which are not subject to State

enforcement under the plan. Thus, Federal OSHA retains its authority

relative to safety and health in private sector maritime activities,

and will continue to enforce all provisions of the Act, rules or

orders, and all Federal standards, current or future, specifically

directed to maritime employment (29 CFR Part 1915, shipyard employment;

Part 1917, marine terminals; Part 1918, longshoring; Part 1919, gear

certification) as well as provisions of general industry standards (29

CFR Part 1910) appropriate to hazards found in these employments, and

employment on military bases and at Area D of the Savannah River Site

(power generation and transmission facilities operated by South

Carolina Electric and Gas). Federal jurisdiction is retained and

exercised by the Employment Standards Administration, U.S. Department

of Labor, (Secretary's Order 5-96, dated December 27, 1996) with

respect to the field sanitation standard, 29 CFR 1928.110; and the

enforcement of the temporary labor camps standard, 29 CFR 1910.142, in

agriculture, as described in Sec. 1952.94(b). Federal jurisdiction is

also retained with respect to Federal government employers and

employees.

* * * * *

4. Section 1952.97 is amended by adding paragraph (c) to read as

follows:

Sec. 1952.97 Changes to approved plan.

* * * * *

1997, the Assistant Secretary approved South Carolina's plan amendment,

dated August 1, 1996, relinquishing coverage for the issues of field

sanitation (29 CFR 1928.110) and temporary labor camps (29 CFR

1910.142) in agriculture (except for agricultural temporary labor camps

associated with egg, poultry or red meat production, or the post-

harvest processing of agricultural or horticultural commodities.) The

Employment Standards Administration, U.S. Department of Labor, has

assumed responsibility for enforcement of these Federal OSHA standards

in agriculture in South Carolina pursuant to Secretary of Labor's Order

5-96, dated December 27, 1996.

Subpart E--Utah

5. Section 1952.114 is amended by revising paragraph (b) to read as

follows:

Sec. 1952.114 Final approval determination.

* * * * *

(b) Except as otherwise noted, the plan which has received final

approval covers all activities of employers and all places of

employment in Utah. The plan does not cover private sector maritime

employment; employment on Hill Air Force Base; the enforcement of the

field sanitation standard, 29 CFR 1928.110; and the enforcement of the

temporary labor camps standard, 29 CFR 1910.142 with respect to any

agricultural establishment where employees are engaged in

``agricultural employment'' within the meaning of the Migrant and

Seasonal Agricultural Worker Protection Act, 29 U.S.C. 1802(3),

regardless of the number of employees, including employees engaged in

hand packing of produce into containers, whether done on the ground, on

a moving machine, or in a temporary packing shed, except that Utah

retains enforcement responsibility over agricultural temporary labor

camps for employees engaged in egg, poultry, or red meat production, or

the post-harvest processing of agricultural or horticultural

commodities.

* * * * *

6. Section 1952.115 is amended by revising paragraph (b) to read as

follows:

Sec. 1952.115 Level of Federal enforcement.

* * * * *

(b) In accordance with section 18(e), final approval relinquishes

Federal OSHA authority only with regard to occupational safety and

health issues covered by the Utah plan. OSHA retains full authority

over issues which are not subject to State enforcement under the plan.

Thus, Federal OSHA retains its authority relative to safety and health

enforcement in private sector maritime activities and will continue to

enforce all provisions of the Act, rules or orders, and all Federal

standards, current or future, specifically directed to maritime

employment (29 CFR Part 1915, shipyard employment; Part 1917, marine

terminals; Part 1918, longshoring; Part 1919, gear certification) as

well as provisions of general industry standards (29 CFR Part 1910)

appropriate to hazards found in these employments. Federal jurisdiction

is retained and exercised by the Employment Standards Administration,

U.S. Department of Labor, (Secretary's Order 5-96, dated December 27,

1996) with respect to the field sanitation standard, 29 CFR 1928.110;

and the enforcement of the temporary labor

[[Page 2561]]

camps standard, 29 CFR 1910.142, in agriculture, as described in

Sec. 1952.114(b). Federal jurisdiction is also retained on the Hill Air

Force Base, and with respect to all Federal government employers and

employees. In addition, any hazard, industry, geographical area,

operation or facility over which the State is unable to effectively

exercise jurisdiction for reasons not related to the required

performance or structure of the plan shall be deemed to be an issue not

covered by the finally approved plan, and shall be subject to Federal

enforcement. Where enforcement jurisdiction is shared between Federal

and State authorities for a particular area, project, or facility, in

the interest of administrative practicability, Federal jurisdiction may

be assumed over the entire project or facility. Ineither of the two

aforementioned circumstances, Federal enforcement may be exercised

immediately upon agreement between Federal and State OSHA.

* * * * *

7. Section 1952.117 is amended by adding paragraph (c) to read as

follows:

Sec. 1952.117 Changes to approved plans.

* * * * *

1997, the Assistant Secretary approved Utah's plan amendment, dated

July 31, 1996, relinquishing coverage for the issues of field

sanitation (29 CFR 1928.110) and temporary labor camps (29 CFR

1910.142) in agriculture (except for agricultural temporary labor camps

associated with egg, poultry or red meat production, or the post-

harvest processing of agricultural or horticultural commodities.) The

Employment Standards Administration, U.S. Department of Labor, has

assumed responsibility for enforcement of these Federal OSHA standards

in agriculture in Utah pursuant to Secretary of Labor's Order 5-96,

dated December 27, 1996.

Subpart J--Iowa

8. Section 1952.164 is amended by revising paragraph (b) to read as

follows:

Sec. 1952.164 Final approval determination.

* * * * *

(b) Except as otherwise noted, the plan which has received final

approval covers all activities of employers and all places of

employment in Iowa. The plan does not cover private sector maritime

employment; Federal government-owned, contractor-operated military/

munitions facilities; bridge construction projects spanning the

Mississippi and Missouri Rivers between Iowa and other States; private

sector hazardous waste disposal facilities designated as Superfund

sites; the enforcement of the field sanitation standard, 29 CFR

1928.110; and the enforcement of the temporary labor camps standard, 29

CFR 1910.142, with respect to any agricultural establishment where

employees are engaged in ``agricultural employment'' within the meaning

of the Migrant and Seasonal Agricultural Worker Protection Act, 29

U.S.C. 1802(3), regardless of the number of employees, including

employees engaged in hand packing of produce into containers, whether

done on the ground, on a moving machine, or in a temporary packing

shed, except that Iowa retains enforcement responsibility over

agricultural temporary labor camps for employees engaged in egg,

poultry, or red meat production, or the post-harvest processing of

agricultural or horticultural commodities.

* * * * *

9. Section 1952.165 is amended by revising paragraph (b) to read as

follows:

Sec. 1952.165 Level of Federal enforcement.

* * * * *

(b) In accordance with section 18(e), final approval relinquishes

Federal OSHA authority only with regard to occupational safety and

health issues covered by the Iowa plan. OSHA retains full authority

over issues which are not subject to State enforcement under the plan.

Thus, Federal OSHA retains its authority relative to safety and health

in private sector maritime activities and will continue to enforce all

provisions of the Act, rules or orders, and all Federal standards,

current or future, specifically directed to maritime employment (29 CFR

Part 1915, shipyard employment; Part 1917, marine terminals; Part 1918,

longshoring; Part 1919, gear certification) as well as provisions of

general industry standards (29 CFR Part 1910) appropriate to hazards

found in these employments; Federal government-owned, contractor-

operated military/munitions facilities; bridge construction projects

spanning the Mississippi and Missouri Rivers between Iowa and other

States; private sector hazardous waste disposal facilities designated

as Superfund sites. Federal jurisdiction is also retained and exercised

by the Employment Standards Administration, U.S. Department of Labor,

(Secretary's Order 5-96, dated December 27, 1996) with respect to the

field sanitation standard, 29 CFR 1928.110; and the enforcement of the

temporary labor camps standard, 29 CFR 1910.142, in agriculture, as

described in Sec. 1952.164(b). In addition, any hazard, industry,

geographical area, operation or facility over which the State is unable

to effectively exercise jurisdiction for reasons not related to the

required performance or structure of the plan shall be deemed to be an

issue not covered by the finally approved plan, and shall be subject to

Federal enforcement. Where enforcement jurisdiction is shared between

Federal and State authorities for a particular area, project, or

facility, in the interest of administrative practicability, Federal

jurisdiction may be assumed over the entire project or facility. In

either of the two aforementioned circumstances, Federal enforcement may

be exercised immediately upon agreement between Federal and State OSHA.

* * * * *

10. Section 1952.167 is amended by adding paragraph (b) to read as

follows:

Sec. 1952.167 Changes to approved plans.

* * * * *

(b) Temporary Labor Camps/Field Sanitation. Effective February 3,

1997, the Assistant Secretary approved Iowa's plan amendment, dated

August 2, 1996, relinquishing coverage for the issues of field

sanitation (29 CFR 1928.110) and temporary labor camps (29 CFR

1910.142) in agriculture (except for agricultural temporary labor camps

associated with egg, poultry or red meat production, or the post-

harvest processing of agricultural or horticultural commodities). The

Employment Standards Administration, U.S. Department of Labor, has

assumed responsibility for enforcement of these Federal OSHA standards

in agriculture in Iowa pursuant to Secretary of Labor's Order 5-96,

dated December 27, 1996.

Subpart N--Minnesota

11. Section 1952.204 is amended by revising paragraph (b) to read

as follows:

Sec. 1952.204 Final approval determination.

* * * * *

(b) Except as otherwise noted, the plan which has received final

approval covers all activities of employers and all places of

employment in Minnesota. The plan does not cover private sector

offshore maritime employment; employment at the Twin Cities Army

Ammunition Plant; Federal government employers and employees; any

tribal or private sector employment within any Indian reservation in

the State; the enforcement of the field sanitation standard, 29 CFR

1928.110; and the enforcement of the temporary labor camps standard, 29

CFR 1910.142, with respect to any agricultural establishment where

employees are engaged in

[[Page 2562]]

``agricultural employment'' within the meaning of the Migrant and

Seasonal Agricultural Worker Protection Act, 29 U.S.C. 1802(3),

regardless of the number of employees, including employees engaged in

hand packing of produce into containers, whether done on the ground, on

a moving machine, or in a temporary packing shed, except that Minnesota

retains enforcement responsibility over agricultural temporary labor

camps for employees engaged in egg, poultry, or red meat production, or

the post-harvest processing of agricultural or horticultural

commodities.

* * * * *

12. Section 1952.205 is amended by revising paragraph (b) to read

as follows:

Sec. 1952.205 Level of Federal enforcement.

* * * * *

(b) In accordance with section 18(e), final approval relinquishes

Federal OSHA authority only with regard to occupational safety and

health issues covered by the Minnesota plan. OSHA retains full

authority over issues which are not subject to State enforcement under

the plan. Thus, Federal OSHA retains its authority relative to safety

and health in private sector offshore maritime activities and will

continue to enforce offshore all provisions of the Act, rules or

orders, and all Federal standards, current or future, specifically

directed to maritime employment (29 CFR Part 1915, shipyard employment;

Part 1917, marine terminals; Part 1918, longshoring; Part 1919, gear

certification) as well as provisions of general industry standards (29

CFR Part 1910) appropriate to hazards found in these employments.

Federal jurisdiction is retained and exercised by the Employment

Standards Administration, U.S. Department of Labor, (Secretary's Order

5-96, dated December 27, 1996) with respect to the field sanitation

standard, 29 CFR 1928.110; and the enforcement of the temporary labor

camps standard, 29 CFR 1910.142, in agriculture, as described in

Sec. 1952.204(b). Federal jurisdiction is also retained over the Twin

Cities Army Ammunition Plant, over Federal government employers and

employees, and over any tribal or private sector employment within any

Indian reservation in the State. In addition, any hazard, industry,