[Federal Register Volume 61, Number 47 (Friday, March 8, 1996)]
[Rules and Regulations]
[Pages 9578-9584]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-5341]
[[Page 9577]]
_______________________________________________________________________
Part VI
Department of Labor
_______________________________________________________________________
Occupational Safety and Health Administration
_______________________________________________________________________
29 CFR Part 1910
Grain Handling Facilities; Final Rule
Federal Register / Vol. 61, No. 47 / Friday, March 8, 1996 / Rules
and Regulations
[[Page 9578]]
DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1910
[Docket No. H-117-B]
Grain Handling Facilities
AGENCY: Occupational Safety and Health Administration (OSHA), Labor.
ACTION: Final rule; technical amendment.
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SUMMARY: OSHA is amending its grain handling standard to clarify
requirements intended to provide protection for employees who enter
flat storage structures. This technical amendment assures that
protection against engulfment, mechanical, and other hazards is
provided without regard to the point at which the employee enters the
storage structure. It also adds a definition of ``flat storage
structure'' to clarify OSHA's original intent as to the scope of the
entry provisions of the standard.
DATES: This final rule will become effective April 8, 1996.
ADDRESSES: In compliance with 28 U.S.C. 2112(a), for receipt of
petitions for review of the standard, the Agency designates the
Associate Solicitor for Occupational Safety and Health, Office of the
Solicitor, U.S. Department of Labor, Room S-4004, 200 Constitution
Avenue NW., Washington, DC 20210.
FOR FURTHER INFORMATION CONTACT: Anne C. Cyr, Office of Information and
Consumer Affairs, Occupational Safety and Health Administration, U.S.
Department of Labor, Room N-3647, 200 Constitution Avenue NW.,
Washington, DC 20210. Telephone (202)-219-8148. For electronic copies
of documents, contact the Labor News Bulletin Board ((202)-219-4784),
or OSHA's WebPage on the Internet at http://www.osha.gov/ . For news
releases, fact sheets, and other short documents, contact OSHA FAX at
(900)-555-3400 at $1.50 per minute.
SUPPLEMENTARY INFORMATION: On October 19, 1995 (60 FR 54047), OSHA
published a proposed technical amendment to its standard for grain
handling facilities. This proposed amendment was designed to clarify
the Agency's original intention with regard to protecting employees who
enter grain storage structures from engulfment and other hazards within
those structures. In particular, the proposal focused on entries into
``flat storage'' structures. The proposed amendment added a definition
of ``flat storage facility'' and set forth requirements to be followed
to protect an employee who enters such a facility.
The proposal provided for a 30-day comment period, extending
through November 20, 1995. Sixteen written comments were submitted by
interested parties, and no hearing requests were received by OSHA. The
Agency has reviewed all materials in the docket in developing this
final rule.
The preamble to the proposed amendment discussed at length the
hazards being addressed by, and the rationale for, the proposal. The
comments generally supported the need to provide protection for
employees exposed to engulfment, mechanical, and other hazards in grain
storage structures, as expressed in the preamble. Most of the comments
also supported the need to clarify the existing rule with regard to its
coverage of entries into flat storage structures. Commenters taking
issue with specific aspects of the proposal focused primarily on five
areas: (1) the proposed definition of ``flat storage facility''; (2)
the proposed requirement to deenergize equipment located within the
storage structure; (3) the proposed lifeline requirements for employees
exposed to engulfment hazards; (4) the proposed coverage of entries
into areas of flat storage structures that do not pose engulfment or
other hazards; and (5) the technical feasibility and economic impact of
the proposal. The following discussion addresses these and other
issues.
``Flat storage facility.'' The proposed rule attempted to define
``flat storage facility'' in a way that would describe what is unique
about this type of grain storage and what differentiates it from other
structures such as bins and silos. By contrast, the existing rule
considered only the height-to-width ratio of a structure when
determining whether to classify it as flat storage. The proposed
definition read as follows: `` `Flat storage facility' means a building
or structure that is used to store grain and that has large doorways at
ground level through which motorized vehicles are driven in order to
move grain.'' In discussing the proposed definition, OSHA emphasized
that the factors determining whether the flat storage provisions of the
rule should apply to a structure are the nature of the structure and
the kinds of hazards potentially encountered by the entering employee,
and not just the mathematical relationship of the structure's
dimensions.
The commenters strongly supported OSHA's decision to define the
term ``flat storage facility'' in the final rule. However, the comments
also suggested a variety of changes in the proposed definition. For
example, the National Grain and Feed Association (NGFA) and the Grain
Elevator and Processing Society (GEAPS) [Exs. 4-2, 4-12] contended that
the proposed definition was not flexible enough to encompass many of
the configurations that are considered by the industry to be ``flat
storage.'' They were particularly concerned that OSHA's classification
of flat storage structures as ``warehouse-type storage structures''
would not encompass many types of structures used for flat storage. In
addition, commenters [Ex. 4-2, 4-9] noted that the use of the term
``flat storage facility'' could be misinterpreted to apply to an entire
plant rather than to the storage space, and they recommended that the
defined term be revised to ``flat storage.''
The National Oilseed Processors Association (NOPA) [Ex. 4-10] noted
that some grain-moving machines, such as power scoops, are not
``motorized vehicles'' that are ``driven'' through the ground level
doors, and that the definition of flat storage structure needs to be
revised to recognize the use of this equipment.
OSHA has determined that several of the changes recommended by
commenters will make the definition clearer and more precise, and has
incorporated these changes into the final rule. First, the term ``flat
storage facility'' is being changed to ``flat storage structure,'' to
emphasize that the flat storage exception applies to the storage
structure and not to the entire facility. Second, the definition notes
that flat storage structures must have an unrestricted ground level
opening for entry, and not just ``large doorways,'' and that the
structure must be of a type that will not empty completely by gravity.
The latter element clearly distinguishes flat storage from silos, bins,
and tanks, which do rely on gravity for emptying. Finally, the
definition recognizes that grain is often reclaimed through the ground
level openings using means other than motorized vehicles.
``Unrestricted'' in the context of ground level entry means that
employees can enter by stepping, walking, or driving through these
openings. This clarification was suggested by NGFA [Ex. 4-12].
As discussed below, entries into flat storage structures will be
covered by paragraph (h) only if there are no toxicity, flammability,
oxygen-deficiency, or other atmospheric hazards in those structures. In
addition, the final rule makes clear that paragraph (h) will only cover
entries that are made through unrestricted ground level openings.
Entries made at or above the level of the grain and above ground
[[Page 9579]]
level will be covered by the general provisions for entry into grain
storage structures found in paragraph (g).
Entry into grain storage structures (paragraph (g)). Paragraph (g)
of the grain handling standard covers entries into grain storage
structures. OSHA proposed to add a new paragraph (h) to the rule to
cover entries into flat storage facilities which contained no
atmospheric hazards, and to except such entries from the general
provisions of paragraph (g). This approach received widespread support
among the commenters, who agreed with OSHA's intention to clarify the
exception and limit its scope.
OSHA is promulgating the exception to paragraph (g) as proposed,
with one significant addition. The proposed exception did not
explicitly indicate that it would apply only to flat storage entries
made at ground level. This was OSHA's original intent: the proposed
definition of flat storage facility clearly stated that large, ground
level doorways were an essential element of such a facility. Several
commenters [Exs. 4-2, 4-9, 4-12, 4-13, 4-14] recommended that the
exception be clarified to specify that it applies only to entries made
through unrestricted ground level openings. OSHA agrees that this is a
necessary precondition for an entry to be covered by paragraph (h) and
to be excepted from coverage by paragraph (g), and has amended the
exception accordingly. It is clear that an unrestricted ground level
opening can protect an entrant under paragraph (h) only if the entry is
made through that opening.
Deenergization of equipment (paragraphs (g)(1)(ii) and (h)(2)).
Proposed paragraphs (g)(1)(ii) and (h)(2) would have required
deenergization of energized equipment in a grain storage facility if it
``could'' present a danger to employees. There was widespread agreement
in the record as to the need to deenergize equipment which endangers
employees. However, the use of the phrase ``which could endanger'' was
strongly opposed by most commenters, who felt that it would require
deenergization in situations where other protective measures, such as
machine guarding, would be effective in protecting employees. [cf. Exs.
4-2, 4-5, 4-10, 4-13, 4-15]. It was noted that this was particularly
likely to occur in large flat storage structures, where motorized
vehicles and other mobile equipment that are moving grain within the
structure are not endangering employees. OSHA agrees that adding the
word ``could'' is not necessary to provide the desired degree of
protection, and has not included it in the final rule.
A new paragraph (g)(1)(iv) is being added to prohibit explicitly
the practice of ``walking down grain.'' This and other similar
practices require an employee to walk on the surface of the stored
grain to get the grain to flow out of the structure. ``Walking down
grain'' is an extremely dangerous practice because the employee is on
the surface of the grain with the specific intention of making the
grain flow away from him or her. This exposes the employee to an ever-
increasing risk of engulfment as the surface layer of grain is eroded
from underneath. It was this practice that led to the death of a 19-
year-old employee in a corn storage structure on October 22, 1993.
(This incident is discussed in detail in the preamble to the proposal,
60 FR at 54058, column 1.)
NGFA [Ex. 4-2] stated: `` `Walking down grain' or similar practices
where employees walk on grain to get grain to flow out of a grain
storage structure or where employees are on moving grain (and thus
exposed to an engulfment or a mechanical hazard) are not permitted.''
OSHA agrees with this comment, and is incorporating it into the text of
new paragraph (g)(1)(iv). (As discussed below, language prohibiting
``walking down grain'' and related practices is also being added to the
flat storage structure provisions, as new paragraph (h)(2)(ii).)
In paragraph (g)(2), OSHA proposed to require that whenever an
employee enters a grain storage structure from a level at or above the
level of the stored grain, or whenever an employee walks or stands on
or in stored grain which could cause engulfment, the employer must
equip the employee with a body harness with lifeline or a boatswain's
chair. The lifeline, in turn, would have to be capable of preventing
the employee from sinking further than waist-deep in the grain. This
proposed provision (together with a similar provision in proposed
paragraph (h)(1)), received considerable attention from the public
during the comment period.
The public comments strongly favored a requirement to provide
protection to employees exposed to engulfment hazards. However, several
commenters [cf. Ex. 4-2, 4-10, 4-13] raised specific concerns about the
proposed provision, including the following: (1) In some situations,
lifelines could actually expose the employee to a greater hazard, and
lifelines should not therefore be required in those situations; (2)
lifelines are not necessary if the engulfment hazard either does not
exist or can be controlled; (3) entry onto surfaces which are
relatively free of grain, such as floors, platforms or catwalks, can be
performed safely without lifelines; (4) the configuration of many flat
storage structures does not allow tying off and rigging of lifelines to
assure that the employee does not sink more than waist-deep in grain;
(5) the proposed lifeline provisions were more extensive than those in
the original standard, and their cost impact and feasibility had not
been fully evaluated by OSHA.
The issues relating to lifelines or boatswain's chairs need to be
addressed separately for bins, silos and tanks (paragraph (g)(2)) on
the one hand, and for flat storage structures (paragraph (h)) on the
other. In the context of bins, silos, and tanks, the requirement to
provide a harness/lifeline or boatswain's chair for entry is not new to
this proposal. Indeed, paragraph (g)(2) of OSHA's current standard
reads as follows:
When entering bins, silos, or tanks from the top, employees
shall wear a body harness with lifeline, or use a boatswain's chair
that meets the requirements of subpart D of this part.
It must be emphasized that this general entry requirement
encompasses entry hazards that go well beyond those of engulfment in
grain. In other words, employers whose employees enter bins, silos, or
tanks from above the grain must consider many factors, such as whether
there is an asphyxiation hazard, or whether there are hazardous
atmospheric contaminants in the structure. In such cases, whether the
entering employee is lowered directly onto stored grain is only one
element to consider in providing protection for that employee. Further,
in issuing the proposal, OSHA clearly indicated that the rulemaking was
limited to the changes being proposed, which specifically address
engulfment hazards and flat storage structures. Thus this technical
amendment will not affect the extent to which harnesses and lifelines
or boatswain's chairs are already required by the standard.
The only substantive changes proposed to paragraph (g)(2) were as
follows: first, instead of referring to entry ``from the top,'' the
proposal clarified that the provision refers to entry ``from a level at
or above the level of the stored grain;'' second, the proposal made
clear that the lifeline or boatswain's chair requirement was to apply
``whenever an employee walks or stands on or in stored grain of a depth
which poses an engulfment hazard;'' and third, the proposal added the
requirement that the lifeline must prevent the employee from sinking
further than waist-deep in the grain.
[[Page 9580]]
Several comments contended that there were feasibility problems
with the proposed requirement that lifelines must prevent the employee
from sinking more than waist-deep in the grain. For example, NGFA [Ex.
4-2] stated:
To comply with the requirement that the lifeline and harness
prevent the employee from sinking no more than waist deep in grain,
most grain storage structures and flat storage will need significant
alterations, including new equipment and designs, not envisioned in
the original RIA. For example, compliance with the proposed standard
could require the installation of a winch system, costing between
$3,000 to $4,000, in each grain storage structure, where the line
can remain approximately vertical. Additionally, an engineering
study would be needed to determine what alterations are required to
enable the winch system to comply with the proposed standard and
provide sufficient structural support for a winch system . . . To
our knowledge, no viable system currently exists on the market today
that would achieve the requirements in the proposed standard for
flat storage and, frankly, we do not believe such a system could be
installed at a reasonable cost. Lastly, the RIA did not address the
impact of proposed paragraphs (g)(2) and (h)(1) to require lifelines
and harnesses, regardless of risk.
With regard to employees who enter grain storage structures other
than flat storage, and who are on, in, or under accumulations of grain
which could engulf them, it is clear to OSHA that these employees need
to be protected from engulfment. Paragraph (g)(2) of the final
standard, like the proposal, provides for this protection through the
use of a lifeline that will prevent the employee from sinking further
than waist-deep in the grain. However, the final rule also recognizes
that there are some situations in which this sort of restraint system
may either be infeasible or create a greater hazard. For example, if a
bin has many obstructions above the level of the grain, it may not be
possible for the employer to rig a lifeline properly without having it
become caught on the obstructions. Therefore, paragraph (g)(2) of the
final rule also provides an exception for the employer who can
demonstrate infeasibility or greater hazard, by allowing that employer
to employ an alternative means of protection that will prevent the
employee from being engulfed in the grain. This could be done by
clearing a space on the floor of the tank where an employee could stand
and work without being exposed to either an engulfment hazard or a
mechanical hazard. OSHA emphasizes that, even in situations where the
employer can show that lifelines meeting the standard are not feasible
or will create a greater hazard, the employer continues to have the
responsibility to protect the employee from engulfment.
As was noted in the NGFA [Ex. 4-2] and American Feed Industry
Association [Ex. 4-9] comments, an employee who enters a grain storage
structure under paragraph (g) may not be exposed continuously to
engulfment hazards. For example, when the employee is on a flat floor
of a structure, sweeping or otherwise manually moving residual grain
towards an auger, there is no accumulation of grain beneath the
employee that could cause engulfment. Under these circumstances, it is
permissible for the employee to remove the lifeline during this
operation. In situations where the employer can demonstrate that there
is no exposure to engulfment, the standard does not require the use of
a lifeline for protection against that hazard. OSHA is adding a note to
paragraph (g)(2) to clarify the standard in that regard.
The proposed requirement for lifelines also caused concern in the
context of proposed paragraph (h)(2), which addresses entries into flat
storage structures. As discussed above, some commenters contended that,
because of the size and configuration of flat storage structures,
lifelines which would meet the requirements of the proposal (i.e.,
prevent the employee from sinking deeper than waist-deep into the
grain) would pose feasibility problems. In addition, several commenters
noted that an employee entering a flat storage structure at ground
level is exposed to engulfment hazards only if there is operational
drawoff equipment beneath the grain which could cause the grain beneath
the employee to flow. However, in these cases, an alternative to
lifelines is available: if the stored grain is blocked and will not
flow, the employer can simply lock out the equipment in order to
prevent engulfment from occurring.
Several commenters suggested areas and types of work in flat
storage structures that did not present the hazards addressed by
proposed paragraph (h). They contended that lifelines were not needed
in these situations. For example, Layne and Myers Grain Co. [Ex. 4-3]
noted: ``Grain may be piled against the bin wall 15 feet deep or more
and a worker may never walk on anything more than two inches of grain
while sweeping.'' NGFA [Ex. 4-2], Grain and Feed Association of
Illinois [Ex. 4-15], and The Andersons [Ex. 4-13] agreed that the
following three circumstances did not present engulfment hazards:
1. When the employee is on a flat floor area, such that the
employee is not exposed to flowing grain hazards, or when the employee
is operating mechanical equipment in a safe location;
2. When the employee is inside mobile equipment being used to
reclaim grain; and
3. When the employee is on a catwalk or platform above the grain
surface.
NGFA [Ex. 4-2] added a fourth situation:
When entering on top of sound grain surfaces for inventory
purposes or to apply fumigants [(]using appropriate respiratory
protection), or to determine grain conditions or quality provided
all reclaim systems are properly locked out, preventing the grain
from being subject to movement.
AFIA [Ex. 4-9] suggested that when an employee has shoveled and
cleared a place on the concrete floor of a flat storage structure,
there is no longer a danger of the employee being drawn into the
equipment or engulfed by grain. ``When the employee is able to clear an
area and stand on the floor adjacent to the equipment opening, or must
operate power shovels, bin sweeps or front-end loaders, a danger of
being drawn into operating equipment may not exist.''
OSHA agrees that when the employee is not exposed to the hazards
being addressed by this standard, the lifeline and deenergization
requirements of this standard should not apply. To the extent that the
above situations do not present engulfment, mechanical, or other
hazards addressed by the standard, the standard does not require the
employer to provide protection against those hazards. However, OSHA
chooses not to provide a blanket exclusion from coverage for any
specific work operation. Because of the wide range of work operations,
conditions, and locations within a grain storage structure, OSHA
believes it is more appropriate to address the presence of hazards,
rather than to focus on specific jobs or activities. The Agency
anticipates that where operations such as those noted in the comments
do not expose employees to hazards, the employer will be able to
demonstrate that those hazards are not present.
OSHA agrees with NGFA and others that many entries into flat
storage structures do not present engulfment or mechanical hazards. The
technical amendment does not require lifelines for ground level flat
storage entries if employees are not exposed to these hazards.
Similarly, where an employee in a flat storage structure is standing or
walking on the grain under circumstances which cannot cause engulfment,
the standard does not require the employee to wear a lifeline. A note
is being added to paragraph (h) to clarify that where the employer can
[[Page 9581]]
demonstrate that the employee is standing on a surface which does not
present an engulfment hazard, the standard does not require a lifeline
or other protection against such hazard.
The employer can establish that no engulfment hazard exists for a
wide variety of entry conditions. For example, an employee who is
standing on the floor of the structure, or on a platform or catwalk,
will not be exposed to engulfment if that employee is sufficiently far
away from areas where grain is being drawn from storage. In brief, if
the employer can demonstrate that the employee in the flat storage
structure is not exposed to grain which is subject to flow,
avalanching, collapsing, or sliding, and that the employee is also not
exposed to hazards from equipment used to draw off or reclaim grain,
the standard does not require a lifeline, nor does it require the
equipment to be deenergized.
OSHA acknowledges that, in some cases, it may not be technically
feasible to provide lifelines for employees who enter flat storage
structures. The Agency also agrees with commenters that even where
feasible, lifelines may not be necessary to protect entrants from
engulfment hazards. Where engulfment hazards relate to the practice of
``walking down grain'' to make it flow more readily to the drawoff
equipment, the standard is explicit: it prohibits that practice.
However, in other circumstances where employees are on the grain in
flat storage structures, OSHA has determined that paragraph (h)(2) of
the final standard should be more flexible than the corresponding
paragraph of the proposal. This is because entries at ground level of
flat storage structures do not present the same potential for
engulfment hazards as do entries made from at or above the level of the
grain. As noted by several commenters, many activities inside flat
storage structures do not expose employees to engulfment. Clearly, if
an employee is not walking on the grain at all, but is walking on a
floor, catwalk or platform, that employee is not exposed to engulfment.
Similarly, if the grain cannot flow, avalanche, collapse or slide, and
all reclaim and other equipment which could disturb the grain is
properly locked out, an employee standing on the grain is unlikely to
be exposed to an engulfment hazard. For these reasons, the final
standard does not require the general use of lifelines for ground level
entries. Instead, the standard requires only that the employer provide
protection against engulfment hazards where such hazards exist, without
specifying a particular method of providing this protection. OSHA
believes that for ground level entries into flat storage structures,
the most serious engulfment hazards are addressed by two other
provisions of the final rule: the prohibition on ``walking down grain''
and the requirement to deactivate equipment, including grain transport
machinery, which could endanger employees.
As discussed earlier, OSHA has determined that ``walking the
grain'' and similar practices used to move grain to the drawoff point
are inherently unsafe, regardless of the size, configuration, or type
of grain storage structure. Accordingly, new paragraph (h)(2)(ii) is
being added to prohibit these practices in flat storage structures,
just as new paragraph (g)(2)(iv) is being added to prohibit them for
other types of grain storage structures.
Training. OSHA did not propose any changes in the training
requirements of the grain handling standard. Paragraph (e) of
Sec. 1910.272 requires employers to provide training in both general
safety precautions and specific procedures applicable to the employee's
work. Training in bin entry procedures is specifically required under
paragraph (e)(2).
Two commenters suggested that additional training be spelled out in
the standard. NGFA [Ex. 4-2] recommended that employees who enter grain
storage structures and flat storage structures be trained to recognize
and avoid potential engulfment or equipment hazards. This
recommendation was supported by The Andersons [Ex. 4-13].
The training provisions of paragraph (e) of the grain handling
standard currently require employees to be trained in the specific
procedures and safety practices applicable to their job tasks. In
addition, paragraph (e)(2) specifically addresses the hazards of bin
entry. These provisions already require training in the hazards being
addressed in this notice. However, OSHA agrees that, in light of the
attention being given to these hazards of entry into grain storage
structures, it is appropriate to reemphasize that the standard requires
the employer to train employees in ways of protecting themselves
against these entry hazards. The Agency is, therefore, adding a note to
the training provisions to provide additional emphasis in this area.
Other Issues
Paragraph (h) provides separate coverage for entries into flat
storage structures only if there are no atmospheric hazards. AFIA [Ex.
4-9] recommended that the scope of paragraph (h) be revised to apply to
flat storage facilities ``in which there is no reason to believe that
atmospheric hazards exist, such as toxicity, flammability, or oxygen-
deficiency.'' The intent of this suggested change was to enable the
employer to determine the absence of atmospheric hazards in flat
storage structures based on knowledge and experience, without the need
to perform monitoring in all cases. OSHA recognizes that monitoring may
not be necessary to determine that atmospheric hazards are not present
in flat storage structures. However, the Agency believes that the
provision as proposed provides employers with the flexibility needed.
Unlike the requirements of paragraph (g), which address atmospheric
monitoring directly, the criteria for coverage under paragraph (h) are
silent on the subject of atmospheric monitoring. The employer may use
knowledge and experience to make a determination that no atmospheric
hazards are present if reaching such a conclusion is reasonable under
the circumstances.
Some comments contended that OSHA's use of the word ``grain''
throughout the proposed technical amendment was too narrow, because the
standard covers a wide range of grain and grain products. NOPA [Ex. 4-
10] noted that flat storage structures can contain soybean meal and
hulls, for example, in addition to grain. Ensign Safety and Health
Advisory [Ex. 4-11] requested that the scope of the standard be
clarified as to its coverage of raw and processed agricultural
products.
In response, OSHA notes that Sec. 1910.272 covers a wide range of
grain handling and processing facilities, as noted in paragraph (b) of
the standard. These facilities include those that handle and store both
raw and processed grain and grain products, such as feed, flour, and
soycake. The addition of paragraph (h) to cover flat storage structures
is intended to cover the same range of products as are already covered
by paragraph (b) of the existing rule. OSHA is clarifying this
coverage, in paragraphs (g) and (h) to indicate that the word ``grain''
in these paragraphs refers to both raw and processed grain and grain
products that fall within the scope of paragraph (b).
In proposing to add a new paragraph (h) to Sec. 1910.272, OSHA also
proposed to redesignate paragraphs (h) through (p) as paragraphs (i)
through (q), respectively. In doing so, however, OSHA did not make a
corresponding change in paragraph (b), which indicates which paragraphs
of Sec. 1910.272 cover what types of grain handling facilities. The
final rule makes the necessary change, indicating that paragraphs (a)
through (n) (formerly (a)
[[Page 9582]]
through (m)) cover all grain facilities, while paragraphs (o) through
(q) (formerly paragraphs (n) through (p)) apply only to grain
elevators. In addition, conforming changes are being made throughout
Sec. 1910.272 to assure that internal references within the standard
are consistent with the new paragraph letters.
The American Society of Safety Engineers (ASSE) [Ex. 4-8] suggested
that OSHA use the ANSI national consensus standard for confined spaces,
ANSI Z-117.1-1995, as a resource in completing the grain handling
standard. OSHA agrees with ASSE that the ANSI Z-117.1 standard is a
valuable source document which is appropriate for the Agency to
consider in developing confined space standards. In the context of this
limited rulemaking, OSHA has reviewed the ANSI standard and has
determined that the Agency's technical amendment is consistent with the
consensus standard's requirements. Whereas the ANSI standard is
directed at confined spaces in general, this notice is not directed
primarily at confined space entries. Rather, the new requirements in
paragraph (h) apply only to ground-level entries into flat storage
structures that present no atmospheric hazards. OSHA believes that the
final rule provides appropriate protection for these entries.
Summary of Economic Analysis and Regulatory Flexibility Analysis
The Economic Analysis OSHA has prepared to accompany the final
technical amendment being issued today to the Agency's Grain Handling
standard (29 CFR 1910.272) presents revised cost estimates for the
regulatory provisions addressed in the amendment. Only the costs
associated specifically with the provisions being clarified by the
amendment are described here; all other costs and analytical results
projected by the Regulatory Impact Analysis (RIA) [Ex. 223] originally
prepared in 1987 to support the final Grain Handling standard remain
unchanged. OSHA has determined that the regulatory actions being taken
in this amendment do not constitute a ``significant regulatory action''
for the purposes of Executive Order (EO) 12866. That is, this technical
amendment does not impose costs on the regulated community that
approach the $100 million threshold specified by the EO, because the
changes made in this amendment merely clarify the Agency's original
intent when issuing the final rule in 1987. At that time, OSHA assumed
that the flat storage exception contained in the final rule was clear
and would not expose employees working in such structures to engulfment
hazards. However, several tragedies involving employees working in
these grain handling structures have shown that the flat storage
exception in the 1987 rule was in need of clarification. The amendment
being published today makes these needed changes.
As described elsewhere, these clarifications include: (1)
clarifying in paragraphs (g) and (h) the employer's obligation to
protect employees against grain engulfment hazards regardless of the
dimensions of the structure or point of entry; (2) stating that means
of protection must prevent the employee from sinking further than waist
deep in grain, as explained in paragraphs (g)(2) and (h)(1); (3) in
paragraph (g)(1)(iv), prohibiting ``walking the grain'' for the purpose
of breaking up bridging conditions; and (4) in paragraph (e)(3),
requiring that training must include a section dealing with engulfment
and mechanical hazards.
These clarifications are expected to have substantial benefits for
employers and employees. For example, the Agency estimated in the 1987
RIA [Ex. 223] that the final standard would prevent 80% of all grain
handling engulfments. Based on more recent Agency data from its
Integrated Management Information System (IMIS) database, however, OSHA
now believes that as many as 2 to 4 engulfment fatalities annually will
be prevented by the clarifications contained in this technical
amendment. Based on the same data, the Agency believes that a similar
number of equipment-related accidents (e.g., traumatic injuries caused
by mechanical devices, such as augers) will also be prevented by the
changes being made today.
In the 1987 RIA, the Agency estimated that there were 14,000 grain
elevators with 118,011 full-time and seasonal employees, and 9,922
grain mills with 129,068 full-time and part-time employees [Ex. 223,
Tables II-1, II-3]. OSHA believes that these numbers continue to
represent the industry today. As noted in the 1987 RIA, although all
grain facilities have upright structures, only a portion have flat
storage structures [Exs. 10, 193]. Flat storage structures are
typically add-ons, constructed quickly to handle excess grain.
This final technical amendment incorporates language into paragraph
(g)(2) of the standard that requires employers to ensure that employees
do not sink further than waist deep when walking or standing on or in
grain; employees are required to use a lifeline to provide this
protection when exposed to a grain engulfment hazard. This language,
which has been taken from the Agency's current Grain Handling
Facilities compliance directive, is intended to ensure that employers
have a clear understanding of their obligations to protect employees
from engulfment. The importance of this provision is underscored by
OSHA's review of the Agency's Integrated Management Information System
(IMIS) abstracts on fatal workplace injuries, which identified at least
one fatality that occurred because the employee, although secured by a
lifeline, was engulfed by the grain because the line had too much slack
in it. In this amendment, the Agency is clarifying that merely
requiring an employee to wear a lifeline is not sufficient; in order to
meet the intent of the standard, the lifeline must be used in a way
that prevents the hazard in question.
In comments on the proposed technical amendment, the NFGA [Ex. 4-2]
stated that new paragraph (g)(2) would impose additional costs on the
regulated community. In the view of NGFA, paragraph (g)(2) would
require employers to install a winch system in all grain handling
structures. OSHA believes, however, that many grain handling structures
already have such systems, because winches and lifelines are commonly
used safety devices that have been required by paragraph (g)(4) of the
existing rule since 1988, the year that the Grain Handling Facilities
standard became effective. Paragraph (g)(4) requires that employers
provide rescue equipment that is specifically suited for the structure
being entered. Mechanical assistance, such as that provided by a winch-
and-lifeline system, appears to be the simplest and most common means
of facilitating rescue and maintaining safe entry.
In the earlier rulemaking, industry representatives clearly
recognized that paragraph (g)(4) would require employers to provide
mechanical means to achieve compliance. For example, the American Feed
Manufacturers Association reported at that time that many facilities
already had such systems in place [Ex. 193]. OSHA recognizes that some
grain handling facilities did not have such systems in 1987. However,
OSHA believes that many of these facilities will have installed such
systems in the interval since publication of the standard, although the
Agency does not have a precise count of the number of systems in place
today. Nevertheless, to be conservative, OSHA has evaluated the costs
that some employers might incur to come into compliance with this
technical amendment.
[[Page 9583]]
First, if an establishment believes that the purchase of a winch-
and-lifeline system poses too great an economic burden, the final
technical amendment allows employers to prohibit those work practices
that would allow an employee to sink more than waist deep in grain.
Such prohibitions are common in the industry. For example, the NFGA
[Ex. 4-2] states that its work practice recommendations for this
industry would accomplish this safety goal. For this reason, the Agency
specifically is incorporating NFGA's suggestion [Ex. 4-2, p. 3] to ban
the practice of ``walking the grain'' (i.e., attempting to stamp down a
bridging condition) in the standard (paragraph (g)(1)(iv)). Because
this and other practices prevent engulfment, they accomplish the same
protective purpose as a winch-and-lifeline system (i.e., they keep an
employee's lungs from being compressed by the weight of the grain).
Thus, the provisions of this technical amendment can be complied with
merely by the adoption of work practices that prohibit employees from
walking on grain in situations of potential engulfment.
Alternatively, employers can choose to use a winch-and-lifeline
system to protect their employees from engulfment and mechanical
hazards. To assess the extent of the costs that such systems might
impose on employers in this industry, OSHA turned to an industry study
that was conducted in connection with the 1987 rulemaking. This study,
known as the Stivers study [Ex. 193], assumed that one winch system per
establishment would suffice in most structures, and that this single
system could be moved from bin to bin as needed. In some cases, the
Stivers report assumed that two systems would be required at a given
mill. At the time, the cost of such a system was assumed to be $1400
[Ex. 193, pp. 3-16-17, 6-4]. To evaluate the costs employers might
incur in the worst case as a result of the technical amendment being
published today, OSHA obtained up-to-date cost estimates of
approximately $3000 for these systems [Lab Safety Supply, 1996, pp.
234-236].
Although OSHA does not believe that many employers will in fact be
required by this technical amendment to purchase winch-and-lifeline
systems, the Agency nevertheless performed an economic analysis of
potential worst-case impacts, i.e., analyzed the impacts that would
occur if each facility in this industry was required by the amendment
to purchase such a system. Capital costs, such as those incurred to
purchase a rescue system of this type, are typically annualized over
the life of the equipment. If OSHA conservatively assumes that the life
of such equipment is 10 years, \1\ every affected employer would be
expected to incur an annualized cost of $427 per facility. According to
the economic data reported in the original Regulatory Impact Analysis
[Ex. 223], the annual profits for grain cooperatives in the early 1980s
averaged $223,608 each, on average sales of $12.6 million per
cooperative [Ex. 223, p. VII-5]. Annual costs of $427 amount to less
than 1/100th of a percent of annual per-facility sales, and therefore
would have only a negligible impact on prices. Even if employers were
not able to pass any part of these costs through to their customers, a
highly unlikely scenario, these costs would amount to approximately 2/
10th of one percent of the total profits of a given facility. Grain
mills reported average shipments of more than $36 million per
establishment [Ex. 223, pp. II-4, VII-23], so impacts for these
facilities would be even smaller.
\1\ At a 7 percent discount rate, as indicated in the Office of
Management and Budget's Economic Analysis of Federal Regulations
Under Executive Order 12866.
---------------------------------------------------------------------------
Finally, a recent study that reviewed the methodology and findings
of the original grain handling standard's economic analysis reported
that all of the costs imposed by the standard, taken in their entirety,
had in fact had no discernible economic impact on the grain handling
industry [OTA 1995, p. 60]. For these reasons, the Agency finds that
this amendment does not pose issues of economic feasibility for
employers in the affected industry, and further has determined that
this action will not have a significant impact even on the smallest
grain handling facilities.
At the NFGA's suggestion [Ex. 4-2], the Agency is incorporating
language in the training section of the amendment to ensure that
employers dedicate some of their training to the prevention of
engulfment situations. The Agency does not believe that the addition of
this topic to the training curriculum will require additional training
time or impose additional costs because OSHA believes that the final
standard published in 1987 already requires such training. In this
case, particularly after its review of IMIS fatality abstracts
discussed above, OSHA agrees with the NFGA [Ex. 4-2] that emphasizing
the importance of such training will help to avoid engulfment accidents
in grain handling facilities in the future.
This final rule involves no recordkeeping or reporting requirements
under the Paperwork Reduction Act of 1995. It has no impacts on
Federalism beyond those evaluated at the time of the final rule in
1987.
Lists of Subject in 29 CFR Part 1910
Grain handling, Grain elevators, Occupational safety and health,
Protective equipment, Safety.
State Plan States
The 25 States and Territories with their own OSHA-approved
occupational safety and health plans must revise their existing
standard within six months of the publication date of the final
standard or show OSHA why there is no need for action, e.g. because an
existing State standard covering this area is already ``at least as
effective'' as the revised Federal standard. These States are: Alaska,
Arizona, California, Connecticut (State and local government employees
only), Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota,
Nevada, New Mexico, New York (State and local government employees
only), North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee,
Utah, Vermont, Virginia, Virgin Islands, Washington, and Wyoming.
Authority
This document was prepared under the direction of Joseph A. Dear,
Assistant Secretary of Labor for Occupational Safety and Health, U.S.
Department of Labor, 200 Constitution Avenue, N.W., Washington, DC
20210.
Accordingly, pursuant to sections 4, 6, and 8 of the Occupational
Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657), Secretary of
Labor's Order No. 1-90 (55 FR 9033), and 29 CFR Part 1911, 29 CFR part
1910 is hereby amended as set forth below.
Signed at Washington, D.C., this 1st day of March, 1996.
Joseph A. Dear,
Assistant Secretary of Labor.
29 CFR part 1910 is amended as follows:
PART 1910--OCCUPATIONAL SAFETY AND HEALTH STANDARDS
1. The Authority Citation for subpart R of 29 CFR part 1910
continues to read as follows:
Authority: Secs. 4, 6, 8, Occupational Safety and Health Act of
1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's Order No. 12-71
(36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), or 1-90 (55 FR
9033), as applicable.
Sections 1910.261, 1910.262, 1910.265, 1910.266, 1910.267,
1910.268, 1910.269, 1910.272, 1910.274, and
[[Page 9584]]
1910.275 also issued under 29 CFR part 1911.
2. In paragraph (b)(1) of Sec. 1910.272, ``(m)'' is revised to read
``(n).''
3. In paragraph (b)(2) of Sec. 1910.272, ``(n), (o), and (p)'' is
revised to read ``(o), (p), and (q).''
4. The paragraph numbers of the Definitions in paragraph (c) of
Sec. 1910.272 are removed.
5. A new definition of ``Flat storage structure'' is inserted in
paragraph (c) of Sec. 1910.272, between the definitions of ``Choked
leg'' and ``Fugitive grain dust,'' to read as follows:
Sec. 1910.272 Grain handling facilities.
* * * * *
(c) Definitions.
* * * * *
Flat storage structure means a grain storage building or structure
that will not empty completely by gravity, has an unrestricted ground
level opening for entry, and must be entered to reclaim the residual
grain using powered equipment or manual means.
* * * * *
6. A note is added to paragraph (e)(2) of Sec. 1910.272, to read as
follows:
Sec. 1910.272 Grain handling facilities.
* * * * *
(e) Training.
* * * * *
(2) * * *
Note to paragraph (e)(2): Training for an employee who enters
grain storage structures includes training about engulfment and
mechanical hazards and how to avoid them.
7. Paragraphs (h) through (p) of Sec. 1910.272 are redesignated as
new paragraphs (i) through (q), respectively.
8. In new paragraph (m)(3) of Sec. 1910.272, the phrase ``this
paragraph (l)'' is revised to read ``this paragraph (m),'' and the
phrase ``specified in paragraph (l)(1)(i)'' is revised to read
``specified in paragraph (m)(1)(i).''
9. In new paragraph (q)(7) of Sec. 1910.272, the phrase
``Paragraphs (p)(5) and (p)(6) of this section'' is revised to read
``Paragraphs (q)(5) and (q)(6) of this section.''
10. In new paragraph (q)(8) introductory text of Sec. 1910.272, the
phrase ``Paragraphs (p)(4), (p)(5), and (p)(6) of this section'' is
revised to read ``Paragraphs (q)(4), (q)(5), and (q)(6) of this
section.''
11. In the Information collection requirements parenthetical at the
end of new paragraph (q) of Sec. 1910.272, the phrase ``in paragraphs
(d) and (i)'' is revised to read ``in paragraphs (d) and (j).''
12. In Appendix A to Sec. 1910.272:
a. In the second paragraph of the section entitled ``8. Filter
Collectors,'' the phrase ``paragraph (k)(1) of the standard'' is
revised to read ``paragraph (l)(1) of the standard.''
b. In the last paragraph of the section entitled ``8. Filter
Collectors,'' the phrase ``paragraph (k) of the standard'' is revised
to read ``paragraph (l) of the standard.''
13. The introductory language in paragraph (g), and the text of
paragraphs (g)(1)(ii) and (g)(2) of Sec. 1910.272, are revised, and new
paragraphs (g)(1)(iv) and (h) are added, to read as follows:
Sec. 1910.272 Grain handling facilities.
* * * * *
(g) Entry into grain storage structures. This paragraph applies to
employee entry into bins, silos , tanks, and other grain storage
structures. Exception: Entry through unrestricted ground level openings
into flat storage structures in which there are no toxicity,
flammability, oxygen-deficiency, or other atmospheric hazards is
covered by paragraph (h) of this section. For the purposes of this
paragraph (g), the term ``grain'' includes raw and processed grain and
grain products in facilities within the scope of paragraph (b)(1) of
this section.
(1) * * *
(ii) All mechanical, electrical, hydraulic, and pneumatic equipment
which presents a danger to employees inside grain storage structures
shall be deenergized and shall be disconnected, locked-out and tagged,
blocked-off, or otherwise prevented from operating by other equally
effective means or methods.
(iv) ``Walking down grain'' and similar practices where an employee
walks on grain to make it flow within or out from a grain storage
structure, or where an employee is on moving grain, are prohibited.
* * * * *
(2) Whenever an employee enters a grain storage structure from a
level at or above the level of the stored grain or grain products, or
whenever an employee walks or stands on or in stored grain of a depth
which poses an engulfment hazard, the employer shall equip the employee
with a body harness with lifeline, or a boatswain's chair that meets
the requirements of subpart D of this part. The lifeline shall be so
positioned, and of sufficient length, to prevent the employee from
sinking further than waist-deep in the grain. Exception: Where the
employer can demonstrate that the protection required by this paragraph
is not feasible or creates a greater hazard, the employer shall provide
an alternative means of protection which is demonstrated to prevent the
employee from sinking further than waist-deep in the grain.
Note to paragraph (g)(2): When the employee is standing or
walking on a surface which the employer demonstrates is free from
engulfment hazards, the lifeline or alternative means may be
disconnected or removed.
* * * * *
(h) Entry into flat storage structures. For the purposes of this
paragraph (h), the term ``grain'' means raw and processed grain and
grain products in facilities within the scope of paragraph (b)(1) of
this section.
(1) Each employee who walks or stands on or in stored grain, where
the depth of the grain poses an engulfment hazard, shall be equipped
with a lifeline or alternative means which the employer demonstrates
will prevent the employee from sinking further than waist-deep into the
grain.
Note to paragraph (h)(1): When the employee is standing or
walking on a surface which the employer demonstrates is free from
engulfment hazards, the lifeline or alternative means may be
disconnected or removed.
(2) (i) Whenever an employee walks or stands on or in stored grain
or grain products of a depth which poses an engulfment hazard, all
equipment which presents a danger to that employee (such as an auger or
other grain transport equipment) shall be deenergized, and shall be
disconnected, locked-out and tagged, blocked-off, or otherwise
prevented from operating by other equally effective means or methods.
(ii) ``Walking down grain'' and similar practices where an employee
walks on grain to make it flow within or out from a grain storage
structure, or where an employee is on moving grain, are prohibited.
(3) No employee shall be permitted to be either underneath a
bridging condition, or in any other location where an accumulation of
grain on the sides or elsewhere could fall and engulf that employee.
[FR Doc. 96-5341 Filed 3-7-96; 8:45 am]
BILLING CODE 4510-26-P
